^,^.6 


'*•*■'  ■•.'*~iT'"^'ijr.c»'.»l'5.'*fii2*?i"^«#-»'*^'*'*'! 


No 

In  the  Supreme  Court 


OF   THK 


STATE   OF  CALIFORNIA. 


ANDREW  McNAMEE. 

Respondent, 
vs. 

DANIEL  McCUSKER  d  al. 

AppeUanfs. 


s 


if tmsif Iff  %%  mttiii^ 


R  S.  BK0UK8, 

for  Appellants. 
A.  CRAIG, 

for  Respondent. 


San    Francisco  : 

IVotnetis    Unio?i   Prun^    424   Montgomery   Street. 

1874. 


Ffif  f  «•  f  f  f  f  *Tlf  «f  f  < 


^ 


Cop.   ± 


INDEX. 


FOLIO- 

Answer 9 

Certificate  of  Clerk 220 

Complaint 1 

Judge's    Statement   and    Order  denying 

New  Trial 11)5 

Judgment 11 

Notice    of   intention    to  move    for   New 

Trial 17-21 

Notice  of  Appeal  and  Pi'oof  of  Service  .  .  209 
Opinion    of  Judge,  denying   motion  for 

New  Trial 201 

Order  denying  motion  for  New  Trial.  .  .  195 
Statement  on  motion  for  New  Trial  and 

on    Appeal - 24 

Deed  D.  McCusker  to  Munro  Shattuck.  .  93 

"     Munro  Shattuck  to  J.  E.  AIcFarlin  98 

"     Munro  Shattuck  to  D.  McCusker.  .  IIG 

Deposition  of  G.  II.  Thompson 124 

"    Jas.  T.  Stratton 161 

Motion  for  nonsuit   108 

Patent  to  A.  McNamee 27 

"        ''  Rancho  San  Cayetano 33 


11 


INDEX. 


FOLIO. 


V 


25 


Smith's  Survey,  Exhibit  A 27-32 

Survey  of  Rancho  San  Cayetano 33 

Stipulation   as   to    testimony    of    S.  TV 

Smith 

Testimony  of  J.  E.  McFarlin 34 

u         (i     u  <i         u           102 

"         "     «'  "         "          recalled. .  .  .  105 

"         "     Edward  McNamee 49 

"         ''     Munro    Shattuck 55 

"          "          "             "         in  rebuttal  182 

,,         ,,     Peter  McNamee 79 

"         "     Ebenezer    Nediver 83 

"         "     Kingsley  King 87 

"     D.  McCusker 100 

"         •'     ''             "         recalled 180 

Stipulation  as  to  Statement 193 


eti 


IN  THE  SUPREME  COURT 


2 


In,  the  District  Court  of  the  Third  Judicial  District 
of  the  State  of  California^  held  in  and  for  the 
County  of  Montereij. 


Andrew  McNamee, 

Plaintiff, 

Daniel  McCusker,  W.  R.  Frisbie, 
John  Doe  and  Richard  Roe, 
3  Defendants. 

. / 


^ 


Complaint. 

Andrew  McNamee,  the  above-named  plaintiff,  a 
resident  of  the  County  of  Monterey,  Slate  of  Cal- 
ifornia, comes  and  complains  of  the  above-named 
defendants,  D.  McCusker,  John  Doe  and  Rich- 
ard Roe,  whose  real  names  are  unknown  to  this 


2i)lti28 


2     - 

plaintiff,  and  who  are  therefore  sued  by  the  name 
4  of  John  Doe  and  Richard  Roe,  ami,  for  cause  of 
action  and   complaint,  alleges  and   shows  to  the 
Court. 

That  heretofore,  to  wit,  on  the  14th  day  of 
November,  a.  d.  1867,  the  said  plaintiff"  was,  and 
ever  since  has  been,  and  still  is,  seized  in  fee- 
simple  of,  and  was  in  the  lawful  possession  of  the 
following  described  premises,  situated  in  the 
County  of  Monterey,  State  of  California,  bounded 
and  described  as  follows,  namely:  being  a  part 
of  lots  numbers  6  and  7  of  section  number  31  in 
Township  number  12,  south  of  range  No.  2  east, 
*^  beginning  at  a  post  marked  M  2,  on  the  south- 
erly boundaiy  line  of  the  rancho  Bolsa  de  San 
Cayetano,  at  the  point  where  the  division  fence 
between  the  lands  of  D.  McCusker  and  Andrew 
McNamee  intersects  the  said  rancho  line,  and 
running  thence  southwestei'ly  and  paialle!  with 
said  division  fence  4f,~^  chai  is  to  a  fen:ie;  thence 
in  a  southeasterly  direction,  and  along  said  last 
mentioned  fence  and  paiallel  with  the  said  south- 
ern bo.mdai'y  line  of  said  Rmcho  Bolsi  de  San 
Cayetano  4->  chains  to  the  division  fence  between 
C  the  lands  belonging  to  A.  McNamee  and  the 
heirs  of  L.  P.  Ciia})in,  deceased;  thence  north- 
easterly and  along  said  fence  4  {^q  chains  to  the 
said  southerly  boundary  line  of  said  Rancho  Bol- 
Ba  de  San  Cayetano;  thence  norrh  67  west  along 
said  southerly  boundary  line  of  said  Rancho  Rol- 
sa  de  Sin  Cayetano  to  the  said  post  marked  M 
2,  the  place  of  bcginniug,c;)ntaining  10^^[  acres  of 
land. 


And   the  plaintiff  is  lawfully  entitled  to  the 
7  possession  of  the  said  land  and  premises. 

That  afterwards,  to  wit,  on  the  1 4th  day  of 
November,  a.  d.  1867,  the  defendants  wrongfully 
entered  into  the  possession  of  said  premises,  and 
ousted  the  plaintiff  therefrom,  and  have  ever  since 
held,  kept  and  detained  the  possession  thereof 
from  the  said  plaintiff,  and  now  unlawfully  hold 
possession  of  the  same  from  the  said  plaintiff. 

That  the  rents  au'l  profits  of  the  said  premises, 
from  the  said  14th  day  of  November,  a.  d.  1867, 
are  of  great  value,  to  wit,  of  the  value  of  five 
dollars  per  month,  and  plaintiff  has  suffered  and 
still  suffers  damage  by  reason  of  the  withholding 
possession  of  the  said  premises  in  the  sum  of  one 
hundred  dollars. 

Wherefore,  the  plaintiff  prays  judgment  against 
the  said  defendant  for  the  possession  of  the  said 
land  and  premisas,  and  every  part  thereof,  to  the 
plaintilf,  and  for  damages  in  the  sum  of  one  hun- 
dred dollars  for  the  withholding  the  possession 
of  the  premises,  together  with  all  the  costs  of  the 
action. 

Craig  &  Barham, 
g  Plaintiff's  Attorney. 

(Endorsed)      Filed  Feb.  24,  1869. 


[title  of  court  and  cause.] 

Answer. 

Come  now  Daniel  McCusker  and  W.  R.  Fris- 
bie,  defendants  named  in  the  above-entitled  ac- 


tion,  and  for  answer  to  the  plaintiff's  complaint 
10  herein  made  and  filed,  deny  each  and  every,  all 
and  singular,  generally  and  specifically,  the  alle- 
gations therein  contained,  and  say  they  areall 
untrue  in  fact. 

Wherefore,  said  defendants  pray  judgment,  that 
they  go  hence  with  the  costs  and  disbursements 
herein  expended. 

Julius  Lee, 
Attorney  for  said  Defendants. 
Service  of  copy    of  the  foregoing  answer  ac- 
cepted, and  the  same  considered  as  filed  in  the 
proper  Court  within  the  proper  time. 
^^       March  24,  1869. 

Craig  &  Barham, 
Attorneys  for  Plaintiff. 
Filed  March  25,  1869. 


[title  of  court  and  cause.] 

Judgment. 

This  cause  coming  on  to  be  heard  in  its  regu- 
12  lar  order  at  the  April  Term  of  said  Cour^",  a.  d. 
1870,  to  wit,  the  7th  day  of  April,  a.  d.  1870, 
and  the  respective  parties  appearing  by  their  at- 
torneys, the  said  cause  was  tried  by  the  Court  with- 
out a  jury,  and  the  Court  having  heard  the  evi- 
dence of  the  parties  and  the  argument  of  coun- 
sel, the  Court  took  said  cause  under  advisement. 
And  now  at  the  October  Term  of  said  Court,  a.  d. 
1870,  to  wit,  on  the  3d  day  of  October,  a.d.  1870, 


the  Court  bciiio;  sufficiently  advised  in  the  prem- 
13  iscs,  rendered  its  judgment  in  favor  of  the  plain- 
tiif  and  against  ihe   said  def<nidant.  and  orders 
that  judgment  be  entered  accordingly. 

Wherefore,  it  is  ordered  and  adjudged  that  the 
said  plaintiff,  Andrew  McXamee,  do  have  and 
recover  of  and  from  said  defendants,  Daniel 
McCusker  and  W.  R.  Frisbie,  the  possession  of 
all  that  certain  tract  of  land  lying  and  being  sit- 
uated in  the  County  of  Monterey,  and  State  of 
California,  bounded  and  described  as  follows,  to 
wit: 

Being  a  part  of  lots  numbers  6  and  7  of  sec- 
■*-^  tion  number  31,  in  Township  number  12,  south 
of  range  No.  2  east,  beginning  at  a  post  marked 
M  2,  on  the  southerly  boundary  line  of  the  ran- 
cho  Bolsa  de  San  Cayetano  at  the  point  where 
the  division  fence  between  the  lands  of  D,  Mc- 
Cusker and  Andrew  McNamee  intersects  the 
said  rancho  line,  and  running  thence  southwes- 
terly and  parallel  with  said  division  fence  i^ 
chains  to  a  fence  ;  thence  in  a  southeasterly  di- 
i-ection,  and  along  said  last-mentioned  fence  and 
parallel  with  the  said  southern  boundary  line  of 
15  said  Rancho  Bolsa  de  San  Cayetano  48  chains  to 
the  division  fence  between  the  lands  belonging 
to  A.  McNamee  and  tlie  heirs  of  L.  P.  Cliapiu, 
deceased  ;  thence  northeasterly  and  along  said 
fence  Aj^  chains  to  the  said  southerly  boundary 
line  of  said  Rancho  Bolsa  de  San  Cayetano  ; 
thence  north  67  west  along  said  southerly  boun- 
dary line  of  said  Rancho  Bolsa  de  San  Cayetano 
to  the  said  post  marked  M  2,  the  place  of  begin- 
ning, containing  19^  acres  of  land. 


6 

And  it  is  further  ordered  and  adjudged,  that 
16  the  said  phiintiff  do  have  and  recover  of  and  from 
the  said  defendants  the  sum  of  seventy-nine  dol- 
lars, damages,  for  the  withholding  of  said  prem- 
ises and  the  possession  thereof  from  the  plain- 
tiff by  said  defendants. 

And  it  is  further  ordered  and  adjudged  that 
the  said  plaintiff  do  have  and  recover  of  and  from 
the  s<iid  defendants  the  sum  of  one  hundred  and 
fourteen  So  dollars,  for  his  costs  herein  laid  out 
and  expended. 

The    foregoing    judgnu-nt    rendered    in    open 
Court,  this  od  day  of  October,  a.  d.  1870. 
1^  W".  M.  R.  Parker,  Clerk. 

(Endorsed)     Filed  Oct.  4th,  1870. 


18 


[title  of  court  and  cause.] 

Notice  of  liiieution  to  Move  for  a  New  Trial. 

Please  take  notice,  that  the  defendant  in  the 
above-entitled  cause  intends  to  move  said  Court 
for  a  new  trial  of  said  cause,  on  the  following 
grounds,  to  wit: 

1st.  Insufficiency  of  the  evidence  to  justify 
the  judgment,  or  decision,  of  the  Court. 

2d.  That  said  judgment,  or  decision,  is  against 
law, 

3d.  Errors  of  law,  occurring  at  the  trial,  and 
excepted  to  by  said  defendant. 

Julius   Lee, 
By  B.    S.    Brooks, 
Attorney  for  Defendant. 
To  A.  Craig,  Esq.,  At'oruey  for  Plaintiff*. 


City  and  County  of  San  Francisco,  ss. 
19  William  Leviston,  being  duly  sworn,  deposes 
and  says,  that  A.  Craig  is  the  attorney  for  the 
plaintiff  in  the  above  cause,  and  resides  in  the 
town  of  Watsonville,  in  the  County  of  Santa 
Cruz;  that,  on  the  7th  day  of  November,  1870, 
lie  sei'veil  the  annexed  notice  on  said  Craig,  by 
sending  to  the  U.  S.  Post-office  in  said  City 
and  County  of  San  Francisco  a  true  copy  of  said 
notice,  enclosed  in  an  envelope,  with  the  postage 
thereon  duly  prepaid,  addressed  to  said  Craig  at 
said  town  of  Watsonville. 

Wm.    Leviston. 
Subscribed  and  sworn  to  before  me,  this  18th 
day  of  November,  1870. 

[notarial   seal.]  James  G.  Carson, 

Notary  rublic. 
Filed  November  21,  1870. 

Wm.  M.  R.  Parker,  Clerk. 

(Endorsed)     Notice  of  motion  for  new  trial. 
Filed  Nov.  21,  1870. 

W.    M.    R.    Parker,  Clerk 


20 


21 


[title  of  court  and  cause.] 

Notice  of  Intention  to  3Iove  for  New  Trial. 

Pleas3  take  notice,  that  the  defendant  in  tlie 
above-entitled  cause  intends  to  move  said  Court 
for  a  new  trial  of  said  cause  on  the  following 
grounds,  to  wit: 

1st.  Insufficiency  of  the  evidence  to  justify 
the  judgment  or  decision  of  the  Court. 


8 

2d.     That  said  judgment  or  decision  is  against 

22  law. 

3d  Errors  of  law,  occurring  at  the  trial,  and 
excepted  to  by  said  defendant. 

Julius  Lee, 
By  B.  S.  Brooks. 
Attorney  for  Defendant. 
To  A.  Craig,  Esq. 

I  admit  due  service  of  the  within  at  Watson- 
ville,  this  1 1th  day  of  November,  1870,  waiving  no 
right  to  move  to  dismiss. 

A.  Craig, 
Attorney  for  Defendant. 

23  Filed  May  29,  a.  d.  1871. 


[title  of  court  and  cause.] 

statement  on  Motion  for  New  Trial  and  on  Appeal. 

This  cause  came  on  to  be  tried  before  the 
Judge,  sitting  without  a  jury,  (a  jury  having  been 
waived  by  both  parties,  by  consent,  in  open 
Court,)  on  the  7th  day  of  April,  1870,  and  were 
tried  together. 
24  The  plaintiflf,  upon  his  own  motion,  dismissed 
the  suit  as  to  the  defendant,  Frisbie. 

The  plaintiff,  to  maintain  the  issues  joined,  in- 
troduced in  evidence  the  following  stipulation^ 
viz  : 

It  was  stipulated  by  and  between  the  re- 
spective parties  tliat.  in  this  case,  S.  W.  Smith 
will  testify  that  he  made  a  survey  of  the  south- 
west boundary  of   the  Ranch  of  San  Cajetano, 


running    from    station   "  B.    S.    C.     10,"     lo   the 

2;)  southwest    corner    of    the    ranch,    as    called  for 

in  the  patent,  course  north  G7°\vest  to  the  station 

on  the  Paj.iro  River  ;  that  lie  also  ran  a  line  north 

68^''  west  from  the  station  "  B.  S.  C.  10."     That 

he    also    ascertained    that    McCusker's    fence    is 

erected  on  tlie  line  north  G8i  west. 

That  said    Smith   also    ascertained,  by    actiiaj 

survey  in  1870,  the  corners  of  sections   25,  30, 

31    and    36,   called    for    in    patent,    by    running 

on   the     Township    line     one    mile    north    from 

the  standard,  au'l  that  the  said  corner  is  located 

two  chains  and  thirty  links  north  of  McCusker's 
or 

fence  or   line,  north  68^*^  west,  and  3  chains  and 

70  links  south  of  the  line  north  67°  west. 

That  s  lid  Smith,  at  the  time  of  makins;  said 
survey,  was  County  Surveyor  of  Monterey  Co., 
and  that  he  made  a  diagram  or  plat  of  the  south- 
w>  st  boundary  of  the  rancho,  which  diagram  is 
marixcd  ''  Exhibit  A,"  and  is  admitted  in  evidence, 
and  is  made  a  part  hereof. 

It  is  also  admitted  respectively,  that  the  survey 
by  which   said  Smith  ascertain3d  the  position  of 
the  section   corners,   was  made    subsequently  to 
27  the  survey  of  which  ''  Exhibit  A"  is  a  plat. 

The  plaintiff  then  offered  in  evidence  the  U.  S. 
patent  to  Andrew  McXamee,  for  the  lots  num- 
bered 6  and  7,  section  31,  in  Township  12  south 
range  2  east,  in  the  district  of  land  subject  to 
sale  at  San  Francisco,  California,  comprising 
G2io„  acres,  and  dated  Xovember  10th,  1S68. 

There  being  no  objection  it  was  admitted  in 
"  evidence. 

Plaintiff  next  offered  in  evidence  the  patent  of 


10 

the  Rancho  San  Cajetano,  recor  leil  in  Book  "  A" 
28  of  Linl  Parents  of  the  County  of  Monterey,  on 
pages  74,  75,  76.  77,  78  and  79,  together  with 
the  plat  or  diagram  accompanying  said  patent, 
and  being  a  part  of  the  record  thereof.  Dated 
December  22d,  18iJ4,  and  made  to  Jose  de  Jesus 
Yallejo. 

There  being  no  objection  it  was  admitted  in 
evidence.  A  copy  of  that  part  of  the  line  in 
question,  and  of  the  field-notes  thereof,  is  as 
foUows  : 

Patent  of  the  United  States 

2^  To  Jose  De  Jesus  Valli>j(),  testamentary  ex- 
ecutor of  the  late  Don  Ignacio  V.illejo.  dei;eased, 
dated  February  14th,  18(35,  to  Rancho  Bolsa  de 
San  Cayetano,  bounded  anil  described  as  follows: 
Beginning  at  a  })0!nt  on  the  Pajaro  river,  recog- 
nized as  the  bound  iry  line  between  this  Rancho 
and  the  Rancho  Vega  del  Rio  del  Pajaro;  thence 
(variation  15"  45'  east)  along  the  line  of  the  said 
Rancho  Vegi  lei  Rio  del  Pajaro  S.  12°  30',  E.  17.20 
ch^.;  thence  S.  85"  15',  W.  20.80  chs..  S.  58°  30', 
W.  27.22  chs.;  thenceS.  8P,  W.  2o.75clis.;  then.-e 

3^)  N.  83"  45',  W.  24.17  chs.;  thence  S.  57°  15'.  W. 
27.19  chs.,  S.  34"  15',  W.  53.70  chs  ;  thence  S. 
10"  30',  \y.  83.12  (dis..  to  an  oak  tree  2^  ft.  in 
diameter,  marked  1>  S,  C  9,  on  tli-j  edge  of  an 
estero  ;  the;icj  m  nx  ideringal;)ngthe  edgeof  said 
estero  in  a  g)neral  southwesterly  direction  to  a 
post  marked  15  S  0  10,  and  sec.  4,  in  mound 
station  at  intersoclion  with  the  third  standard 
S.R.  2,  east  31.00  chains,  east  of  corner,  to  sections 
4  and  d;  thence  N.  G7' west  (at  21 1.20  chs  inter- 


11 

sects  lin(3  between  ranges  1  and  2,  T.12.  S.  3' 3.70 
31  chs.,  N.  of  corner  to  sec,  25,  30,31,  and  30,  at  225 
chains  descends  into  bottomland)  234.10,  chs. 
to  a  post  marked  HS  C  11,  at  the  end  of  a  funce 
in  the  bnik  of  the  Pajaro  River  ;  thence  mean- 
dering up  said  river,  in  a  general  northeasterly 
direction,  to  the  place  of  beginning,  containing 
8806  43  acres,  and  being  designated  upon  tiie 
plats  of  the  public  surx^eys  as  lot  No  30,  in  T. 
12,  S.  R.  1  K.,  lot  No.  10,  in  T.  12,  Si.  R.  1  E., 
and  lot  N"().  40,  in  T.  12.  S  R.  2  E,  Mount  Diablo 
meridian. 

Recorded  April  20t!i,  a.  d.  1805. 
^9  ... 

riai  tiff  next   offered    in  evidence  a    certified 

copy  of  the  survey  of  the  southwestern  l)oundary 

(as  surveyed  by  the  U.  S.    Surveyor-General)  of 

the    Ranch  of    San  Cayetano,  dated  March  9th 

1809. 

There  being   no   objection,  it  was  admitted  in 
evidence. 

See  end  of  Transcript  for  map. 

Plaintiff  also    offered  in  evidence  the  diagram, 
marked  "  Exhibit  A,"  which  is  hereto  annexed, 
and  made  part  thereof, 
g  J       See  end  of  Transcript  for  map. 


James    E.  McFarhind, 

A  witness  called  on  behalf  of  plaintiff,  being 
duly  sworn,  testified  : 

I  know  the  tract  of  land  designated.  These 
lots  6  and  7.  section  31  Town.  12  south,  range 
2  east,  are  located  south  of  Smith's  line,  be- 
tween McCusker's  fence   and     Smith's  line.      I 


12 

mean  by  Smith's  line  the  line  of  the  San  Ca- 
34  3'etano  Ranch.  As  I  said  before,  the  lard  de- 
scribed in  this  patent  runs  up  to  the  line  as  run 
by  Smith.  1  don't  know  exactly  what  course 
Smith's  line  runs.  I  was  present  when  Smith 
ran  that  line.  The  line  which  I  refer  to  as 
marked  on  the  diagram  in  evidence  in  red  is  the 
one  as  run  by  Smith,  and  the  land  in  dispute 
lies  between  the  line  markeil  in  red  and  black. 
The  black  line  on  the  diagram  is  intended  to 
show  Stratton's  survey,  and  the  red  line  on  the 
diagram  is  the  line  as  run  by  Smith.  There  was 
a  fence  on  the  black  line,  known  a^  McCusker's 
fence.  I  don't  know  exactly  when  the  fence  was 
built;  it  was  built  before  I  came  there. 

(Witness  describes  on  the  diagram  the  land 
described  in  the  complaint  as  the  tract  of  land 
embraced  in  the  patent  to  McNamee,  offered  in 
evidence.) 

Lots  5  and  G  includes  the  Lm  1  lying  be- 
tween Stratton's  and  t^mith's  fence,  and  em- 
bracing 19^^  acres.  McCusker  was  in  possi^ssion 
of  this  land  on  the  23d  of  January,  1869.  He 
j^g  has  been  in  possession  since  that  time.  He  is 
now  in  i)ossession.  McCusker  rented  it  last  year 
for  $3  per  acre.  If  I  were  going  to  rent  the  land 
I  would  not  pay  more  than  $2  per  acre  for  it. 
That  is  all  I  consider  the  rental  value  of  the  land 
to  be  worth.  The  distance  from  Smith's  line  N.  67^ 
W.  to^McCusker's  fence,  I  do  not  remember.  The 
width  of  it  is  something  over  4  chains,  1  believe. 
I  know  where  the  line  N.  67°  W.,  or  the  Smith 
line,  strikes  the  Pajaro  river.     I  know  where  the 


13 

lower  line,  or  Stratton's  line,  strikes  the  Pajaro. 

37  The  distance  between  these  two  points  is  six 
chains,  I  believe.  I  was  present  when  Smith  ran 
the  line. 

Cross-Examination. 

I  was  present  when  Smith  made  the  survey  to 
ascertain  the  section  corners.  That  was  when  he 
made  his  first  survey. 

From  the  calls  of  the  patent  and  Smith's  sur- 
vey, I  know  lots  6  and  7,  in  Township  12,  south. 
The  calls  of  the  patent  are  what  it  sets  forth. 

38  I  know  where  lots  6  and  7  are  from  Smith's  sur- 
vey. I  know,  because  Smith's  line  runs  north 
where  that  patent  calls  for. 

1  know,  because  1  am  acquainted  with  the  land 
and  I  was  present  when  he  ran  the  line. 

How  do  you  know  what  lots  are  designated  in 
U.  S.  Surveyor-GeneraFs  Office,  as  lots  6  and  7 
of  that  Township  ?  Answer.  All  I  can  judge 
from  is  Smith's  survey. 

Smith  was  the  County  Surveyor  of  this  County. 
The  only  knowledge  I  had  is  what  Smith  told 

39  "^^• 

I  cannot  describe  the  boundaries  of  the  lots, 

except  by  Smith's  survey.  I  suppose  they  run  up 
to  the  grant  line. 

1  have  no  knowledge  or  information  on  the 
subject  except  what  Smith  gave  me. 

McCusker  was  in  possession  on  the  16th  Jay 
of  January,  1869. 

Frisbie  had  the  land  rented  then.  He  rented 
it. 


14 

I  know  that  McCusker  owned  the  lani,  because 

40  Frisbie  told  me  so. 

M}'  information  on  that  subject  is  derived  from 
Frisbie  and  others.  McCusker  was  not  himself 
occupying  the  land.  I  presumed  McCusker  to 
be  in  possession  of  it,  because  he  owned  the  land, 
but  Frisbie  was  in  possession  and  cultivated  it  at 
the  time  of  commencing  this  suit. 

I  did  not  follow  Smith  in  his  survey.  He 
started  from  "  B.  S.  C.  10."  Mr.  Smith  used  the 
instrument. 

I  did  not  use  it.     I  only   know  from   what  he 

41  told  me  as  to  the  distance.  I  followed  him  over 
to  the  Pajaro  river.  The  land  is  high  table  land 
there.  We  did  not  pass  any  streams  or  water 
courses — none.  I  waiked  the  whole  distance — 
there  was  one  little  slough  where  you  could  not 
walk,  it  was  some  ten  or  fifteen  chains  from  the 
Pajaro  river — there  w.is  no  place,  from  the  time 
you  reached  the  slough  to  that  point,  where  you 
could  not  walk.  I  crossed  some  road — the  land 
on  the  County  road  was  fenced,  the  road  which 
crossed  that  line  near  the  middle  of  it. 

in  When  we  approached  the  Pajaro  river,  we  did 
not  go  through  the  slough.  Smith  made  an  offset, 
and  went  around  it,  north  of  the  course. 

Between  that  and  the  river,  the  line  passed 
over  a  point  of  land  that  ran  down  toward  the 
low  land;  between  this  water  and  to  the  north  of 
it  the  land  rose  to  the  level  of  the  table  land.  I 
have  been  along  the  line  of  the  Stratton  survey, 
frequently,  but  not  on  any  survey.  T  think 
Smith  took  the  course  of  that  line — he  did  not 


44 


15 

chain  it — that  line  is  marked  by  a  fence.  There 
43  is  a  continuous  fence  on  that  line,  from  its  com- 
mencement to  the  river,  exce[)t  there  is  a  place, 
of  about  one-quarter  of  a  mile,  where  there  is  no 
fence.  It  was  through  a  portion  of  McCusker's 
Goveinment  land.  That  is,  it  is  fenced  on  both 
sides,  but  does  not  cross  his  enclosed  field.  This 
fence  was  on  the  line  when  I  crossed  it.  I  do 
not  know  who  put  that  fence  there — there  was  a 
house  there.  It  was  near  the  river,  where 
Stratton  struck  the  river.  It  was  not  more  than 
12  yards  from  Stratton'sline,  and  about  50  yards 
from  the  river.  And  from  the  Shattuck  house 
to  the  fence  is  about  12  or  15  yards.  It  looks  to 
be  a  house  that  might  be  there  some  years — there 
were  several  other  houses  on  the  place.  I  don't 
know  exactly  the  distance  from  the  river  to 
McCusker's  first  cross-fence.  It  is  nearly  half  a 
mile  from  where  the  fence  on  the  Stratton  line 
strikes  the  cross-fence  on  McCusker's  Govern- 
ment land.  That  cross-fence  runs  a  little  south 
of  east,  I  believe.  This  cross-fence — pointing  it 
out  on  the  diagiam — runs  north  and  south.  It 
may  run  west  of  south.  I  could  not  tell  exactly. 
45  Counsel  for  the  plaintiff  here  withdrew  his 
consent  to  dismiss  the  suit  as  to  Frisbie,  it  having 
been  macle  under  a  misapprehension. 

Counsel  for  defendant  objected  to  the  with- 
drawal. The  Court  overruled  the  objection  and 
permitted  it.  Counsel  for  the  defendants  ex- 
cepted. 


Id 

Re-direct  Examination. 
46 

I  don't  remember  whether  Smith  had  the  patent 
before  him  or  not,  at  the  time  he  made  liis  survey. 

Was  he  not  called  upon  by  yourself  and  others 
to  locate  the  land  of  McNamee,  described  in 
this  patent,  with  reference  to  that  line  ? 

Question  objected  to  by  defendants.  Objec- 
tion overruled,  defendants  excepted,  and  their 
exception  was  noted.  Answer.  Yes,  sir.  He 
was — I  understand  you,  then,  to  say,  that  he  did 
locate  the  land  described  in  this  patent.  Did  he 
or  not  do  so  ? 

Question  objected  to  by  defendants.  Objec- 
tion overruled,  and  defendants  excepted,  and  their 
exception  was  noted. 

Yes,    he  was  requested  to  locate  the  lines    of 
that  patent  in  pursuance  of  that  request.  He  found 
out  the  number  of  acres  between  the  two  lines, 
and  ran  that  red  line,  and  computed  the  number 
of  acres  lying  between  the  red  and  black  lines. 


.r.  Edward  McNamee, 

A  witness  called  on  behalf  of  plaintilr,  being 
duly  sworn,  testified: 

I  know  the  land  described  in  the  patent 

(By  the  Court.)  Give  us  your  de.^cription  of 
lots  five  and  six;  give  us  their  boundaries,  as  you 
understand  them. 

Question  objected  to  by  defendants;  objection 
overruled,  and  defendants  excepted,  and  their 
exception  was  noted. 


17 

On  the  soutli  side,  is  the  lii^e  where  Smith  ran 
49  his  line  by  the  San  Cayetano  Ranch.  The  south 
line  is  the  line  between  the  land  and  McCusker's. 
0.1  the  east  it  is  bounded  by  the  Township  line 
of  Trimble.  In  January,  1809,  McCusker  had 
part  of  it,  and  my  father  had  part  of  it.  McCusker 
was  in  possession  of  the  piece  along  the  S.in  Ca- 
yetano ranch,  eighteen  acres.  I  l)elieve  tliat  is  the 
land  described  in  the  complaint,  the  part  of 
which  he  was  in  possession,  bounded  by  a  line 
running  north  07°  west,  on  the  south  running 
68J^  west,  and  on  the  east  byMcCusker's  to  the 
fence.  That  was  the  land  McCusker  was  in  posses 
sion  of.  He  was  in  possession  of  that  in  1869 . 
No  one  else  was  in  possession  of  it.  He  has  been 
in  possession  of  its'nce  that  time;  he  is  in  posses, 
sion  of  it  now.  lie  rented  it  for  three  dollars 
per  acre  last  3'ear.  I  consider  the  rental  value  o 
it  now  one  dollar  ami  a  h:ilfan  acre.  Three  dol. 
lars  is  more  t!ian  1  would  consent  to  pay  for  it. 

Cross-Examinaticn. 

I  know  which  are  lots  five  and  six  of  sec. ion 
51  thi'-ty-one,  because  I  was  with  Smith  when  he 
surveyed  the  land.  1  have  no  knowledge  on  the 
subject  except  what  Smith  au'l  all  of  them  said. 
My  fiither  and  all  of  'em  said  that  those  were 
the  lots.  I  don't  know  how^  many  lots  there  are 
in  section  thirty-one.  Lots  one,  two,  three  and 
four  are  down  next  the  river.  I  am  not  certain. 
I  mean  the  Tajaio  River.  I  don't  know  what 
sections  they  were  in.  In  section  thirty-one,  ac- 
cordimr  to  the  United  States  survey,  there  ought 


r 


18 

to  be  four  lots.  Question.  How  c;ime  two  of 
o2  them  to  bo  five  and  six?  I  expect  two  of  iheni 
are  corners.  I  don't  think  I  can  describe  five  an  d 
six  and  tell  their  boundaries,  by  actual  objects.  1 
know  their  location  from  what  I  heard  them  say 
about  them.  I  don't  know  whether  I  have  or  not 
seen  a  map  of  the  United  Spates  survey  of  that 
Township.  I  was  never  in  the  United  States  Sur- 
veyor-General's Office.  I  have  not  seen  a  Town- 
ship map  of  that  Township.  Smith  is  a  county 
officer.  At  the  time  of  the  commencement  of  the 
suit  McCiisker  claimed  the  land.  I  think  he  was 
cultiv^atin";  and  cai-ryinff  it  on  himself.  I  saw 
lots  of  men  there  at  work.  1  did  not  see  him  at 
work,  but  I  saw  him  around  thire. 


Munro  Sliattiick, 

A  witness  called  on  behalf  of  plaintiff,  being 
duly  sworn,  testified: 

I  lived  at  Watsonville  'nost  of  the  time  during 
the  years  1857,  1858  and  1859.  I  was  present 
part  of  the  time  when  Terrell  and  his  deputy,  Cox, 
54  made  the  sui'vey  of  the  boundary  line  of  the  San 
Cayetano  Ranch.  1  did  not  follow  t!»em  through. 
I  know  where  they  established  the  southern 
boumlary  line  of  that  ranch  on  the  river.  It  was 
near  the  same  point  where  it  was  afterwards  es- 
tablished by  the  County  Surveyor,  Smith.  Ter- 
rell marked  the  post  where  we  stood.  We  stood 
on  the  bank  of  the  river.  I  lived  there  ;  I  went 
there  in  the  fall  of  1857,  and  lived  there 
until  18G7,    or    18G8.     Looking    at    the    map 


19 

there  was  a  fence  wliicli  run  up  and  down  the 
55  Pajaro  river,  at  a  short  distance  above  tlie  Ter- 
rell lino,  to  a  point  on  the  river  where  the  line 
was  established  by  Stratton.  At  that  point 
there  was  a  fence:  at  the  time  that  Stratton  ran 
the  line  there  was  an  old  fence  that  ran  from  the 
house  to  the  river.  That  fence  does  not  stand 
there  now  ;  it  was  not  a  regular  fenc  j  all  the  way. 
1  do  not  recollect  how  it  was  immediately  at 
that  line,  but  above  that  I  know  that  I  had 
some  fencing  to  prevent  stock  from  going  on  to 
the  bank.  In  some  places  they  could  get  through 
and  in  some  places  not,  but  whether  it  extended 
from  that  line  I  could  not  state  positively.  The 
course  of  t!ie  line  established  by  Stratton  run  just 
below  my  house  to  the  river  south.  The  fencL; 
of  which  I  speak  of  ran  over  to  my  house,  which 
is  situated  below  the  Stratton  lir.e,  between  two 
and  three  rods  from  the  Strattcv.i  line,  and  from 
forty  to  sixty  yards  from  the  river.  That  was 
my  yard  fjn3L3  ;  it  was  at  right  angles  with  the 
river,  the  old  fence  below  my  house.  There  was 
no  fence  running  up  and  down  the  river  below 
the  Stratton  line.  From  the  Terrell  line  down 
57  t!ie  river  there  was  no  fence.  Terrell  established 
his  line  at  Lhi  uppjr  corner  of  the  garden  I  had, 
that,  was  fenced,  tlio  fence  running  up  and  down 
the  river.  He  established  that  line  at  the  upper 
end  of  that  fence  that  ran  up  and  down  the  river, 
or  nearly  so,  I  think.  It  ran  a  short  distance,  but 
the  exact  point  of  that  fence  I  cannot  state,  as  it 
was  partly  fenced  by  the  bank.  That  was  at  or 
near  the  place  where  Smith's  line  strikes  the  river. 
It  is  about,  I  think,  six  chains  from    the  stake 


20 

where  Terrell  established  his  line  down  to  where 
58  Strattoii's  subsequently  was  at  the  time  his  stake 
was  established.  I  understood  that  Terrell  and 
his  men  wero  making  an  official  survey  of  the 
ranch  when  he  established  his  stake. 

Being   Cross-Examined 

By  Mr.  Brooks,  he  testified  : 
The  fence  that  led  from  my  house  to  the  river 
was  a  regular  fence  ;  from  that  along  the  river 
there  was  a  fence  built  of  pickets.  My  memory  is 
that  there  was  a  fence  all  the  way,  in  some  places 
of   pickets  and   in   others  of  slats — there  was  a 

^•-^  continuous  fence  from  the  Stratton  fence  to  a 
point  above  the  Terrell  line.  I  don't  think  there 
was  any  space  between  where  there  was  no  fence 
at  all.  Possibly  there  might  have  been  where  the 
bank  of  the  river  formed  a  fence.  M}^  memory 
is,  that  I  had  it  fenced  all  the  way — my  memory  is, 
that  there  was  some  kind  of  a  fence  all  the  way. 
It  was  between  two  and  three  chains,  going  from 
the  river  on  the  Smith  line,  from  the  river  bank, 
until  you  began  to  rise  on  the  bank,  then  it  rose 
something  like  twenty  feet  ;  you  don't  continue 

QQ  on  the  level,  you  pass  over  an  abrupt  point,  and 
then  you  go  over  another  hollow  towards  a  lagoon 
The  map  at  tlie  place  marked  26,  in  red  ink, 
fairl}^  represents  tht;  configuration  of  the  country, 
as  far  as  I  can  see.  There  is  a  point  as  shown 
running  down  to  the  river  after  you  pass  over 
that — on  the  line  you  fall  into  such  a  depression 
of  ground  as  shown  on  the  map.  It  is  some 
distance  when  you  pass  over  it  before  you  rise 
again,  more  than  4  chains  before  you  rise  to  the 


21 

table  land.  Probably  a  little  higher — then  over 
61  where  the  line  crosses  over  the  point.  After 
that,  you  continue  on  the  table  laiid  till  you  stiike 
the  Slough,  thence  crossing,  on  iis  course,  the  road 
between  Watsonville  and  AFonterey,  The  Strat- 
ton  line  passes  directly  over  bottom  hmd  for  a 
few  rods,  and  then  ascends  on  the  table  land. 
The  distance  on  the  bottom  is  about  10  rods, 
more  or  less.  It  runs  between  two  and  three 
rods  from  my  house.  The  line  was  right  down 
by  the  old  fence,  running  from  my  house  to  the 
river.  I  was  present  when  Stratton  set  that 
corner  stake.  McCusker  was  present  also.  I 
did  not,  when  Stratton  established  his  corner 
stake,  admit  that  it  was  within  2  or  3  feet  of  the 
corner  established  there  at  the  regular  survey 
made  by  Tenell,  but  in  tlu  preliininar}^  survey 
there  had  been  a  st.ike  })hiced  there,  before  the 
survey  of  the  ranch  was  ordered.  That  w^as 
made  by  a  siirvej'or  employed  l)y  the  owmers  of 
the  ranch.  It  was  so  made  to  establish  the  cor- 
ners when  they  made  the  application  for  their 
grant.  There  was  an  original  post  put  there  by 
this  preliminary  survey.  I  had  a  dispute  with 
(3  him  about  his  not  having  got  the  rig.it  position. 
I  did  not  state  that  1  would  have  to  own  up  or 
back  down,  or  that  I  w^ould  admit  that  he  was 
within  2  or  3  feet  of  the  corner  post.  I  will 
tell  you  the  conversation  we  had.  What  1  said 
with  regard  to  the  two  or  three  feet  was  this,  the 
line  of  this  old  fence,  that  ran  from  my  house  to 
the  river,  in  the  prelin.inary  survey,  went  to  my 
posts  that  stood  down  on  th  ?  bank  of  the  river. 


22 

He  would  not  hear  anything  said  with  regard  to 
64  the  Terrell  line,  but  proceeded  to  mark  the  stake 
on  the  bank,  thai  being  on  the  line  of  th  s 
fence,  which  run  at  right  angles  with  the  river  ; 
their  line  running  at  an  acute  angle  or  triangle 
made  his  line  some  two  or  three  feet  out  of  the 
way.  I  told  him  that  even  if  the  corners  had 
been  as  he  said,  that  still  he  was  robbing  me  of 
two  or  three  feet  of  land.  I  p'lt  up  tliat  fence 
on  the  Stratton  line,  immediately  alter  Stratton 
made  his  survey,  i  have  forgotton  the  year  ; 
I  suppose  it  was  after  the  decree  of  partition.  I 
think  it  was  laterthan  in  the  fall  of  1864.  I  put 
up  the  fence  immediately  after  the  survey  was 
.made.  It  was  intended  for  a  boundary  fence. 
It  was  mostly  of  posts  and  slats.  I  don't  know 
whether  it  was  a  lawful  fence,  but  it  answered 
the  pur[)Ose  of  fencing  out  stock.  (To  the 
Court) — t  was  about  five  feet  high.  I  cultiva- 
ted land  protected  by  th  it  fence.  It  protected 
stock.  To  make  this  fence  I  took  down  a  por- 
tion of  the  fence  that  ran  from  my  honse  to  the 
river.  There  may  be  sane  posts  remaining  of 
that  fence  where  it  strikes  thj  river,  forming  part 
OG  of  the  present  d. vision  fen  ;e.  I  don't  rem.^mber 
whether  thera  are  more  tha  i  that  at  that  point. 
It  is  not  on  the  same  place  where  the  old  fence 
was  ;  it  runs  in  a  dilTerent  direction,  and  the 
other  fence  runs  at  right  angles  j  it  does  not 
strike  the  river  at  the  same  point  the  old  fence 
did,  because  they  got  5  or  6  feet  more  this  way. 
There  may  be  postir  there  next  to  the  river.  1 
have  forirotten  about  it. 


23 

Re-direct   Examination. 
67       Did  Terrell  point  out  that  as  the  (corner  where 
he  put  his  post  ? 

Question  objected  to  by  defotidaiits  ;  objection 
overruled,  and  dei'eucLinis  excL'pted  and  their 
excei)tion  was  noted. 

At  the  time  that  Terrell  established  the  cor- 
ner, I  did  not  see  him  do  it.  I  went  to  town 
the  morning  before  they  left  the  ground,  and  on 
my  return  the}'  pointed  out  to  me  wliere  they 
bad  established  it.  1  think  it  was  Terrell 
who  pointed  it  out  ;  it  was  the  surveying 
^^  l)arty.  Terrell's  stake  remained  there  till  18G2 , 
the  3''ear  the  river  was  very  high,  when  the 
watei-  washe'i  stake  and  fence  away.  I  think  it 
was  in  18G2  that  it  was  carried  awa3\  I  saw  the 
stake  ever}'  few  days  from  the  time  it  was  es- 
taldished  until  it  was  washed  away.  There  was 
no  fence  on  the  Pajaro  river,  running  up  and 
down  the  liver,  below  the  line  subsequently  es- 
tablished by  Stratton  at  the  time  Terrell  made 
the  survey.  There  was  none  below  Stratton's 
corner. 

^,  Ue-CIIOSS    FiXAMlNATrON. 

1  built  the  fence  between  the  two  linos  at  dif- 
fiient  times.  I  rebuilt  it  aft'U'  it  had  been 
washed  away  in  t'.ie  wjitjr  of  1862 — -1SG3. 
There  was  no  fence  there  when  I  purchased  the 
properly.  I  bought  it  from  Kingsley  King,  in 
185G  or  1857,  I  think.  I  may  be  mistaken,  but 
I  think  there  was  a  fence  running  from  my  house 
to  the  river.      I    think    tliere  was  a  fence  iicar 


24 

there.  If  there  was  a  fence  I  rebuilt  it.  I  ihink 
70  there  was  some  kind  of  a  fence  tliere,  near  the 
river,  where  I  built  the  fence,  1  built  mine 
of  a  diiFerent  character,  1  think  there  was 
no  fence  u\)  anil  down  the  river.  I  went 
there  along  about  the  hrst  of  January,  1856  or 
1S57.  I  guess  it  was  1856.  1  cannot  tell  how 
long  it  was  after  I  went  there  when  I  put  the 
fence  there.  1  depended  at  first  upon  the  fence 
that  King  built  on  the  river,  to  prevent  stock 
from  getting  in.  That  was  a  little  above  the 
Stratton  line.  I  think  the  fence  was  lunning 
into  the  river  a  Utile  above  the  house;  the  other 
'^  fence  ran  at  right  angles;  the  fence  ran  right 
down  to  the  river.  I  cannot  tell  in  what  year 
I  fenced  it.  That  was  never  a  very  substantial 
fence,  I  put  it  there  at  different  times.  I  don't 
know  exactly  the  period  I  first  put  a  fence  there. 
It  was  probably  in  1858,  I  occupied  a  piece  of 
land  that  was  taken  in  by  the  ranch  a  quarter 
of  a  mile  above  the  fence,  I  occupied  on  both 
sides  of  the  line.  The  object  of  the  fence  built 
along  the  bank  of  the  i  iver  by  King.  I':  ap- 
peared to  me  that  King  had  a  lot  there  that  he 
72  used  for  pasture,  I  used  that  pUice  as  a  garden^ 
and  my  object  was — I  fenced  it  to  keep  stock 
out  of  tlic  garden.  I  think  that  there  was  not 
a  fence  there  in  1858.  I  did  not  remove  it. 
In  1858  \  built  a  fence  along  the  river,  and  en- 
closed it  with  <i  fence  that  runs  across  a  little  bot- 
tom, and  strikes  the  river  at  a  point  below  Terrell's 
line;  it  runs  to  a  little  bush  in  the  bottom  to 
a  point  through  that  bushy    land.     There  was  a 


25 

timber  fence  that  connected  with  the  river  still 
73  above  the  Stratton  line.     I  had  an  enclosure  up 
to  the  time  that  the  survey  was  made  there  by 
Terrell  I  think,  in  1858,  or  1859.     I  had  a  piece 
of  land  enclosed  by  four  lines  of  fence,  with  the 
exception  of  a  very  little  at  the  upper  end  where 
it  was  fenced  by  the  bank.     The  distance  from 
the  Terrell  lino  to  the  upper  end  of  that  fence 
was  nearly  a  chain,  from  three  to  four  rods.    There 
was  a  fence  most  of  the  way  from  the  point  where 
the  fence  struck  the  river,  down  along  the  bank 
of  the  Pnjaro  river.     As  I  have  stated,  I  depend- 
ed on  the  bank  for  the  fence,  as   there   was  no 
'     chance  for  stock  to  go  through  there.     Some  of 
the  way  there  might  not  have  been  any  fence, 
and  in  some  places  one  slat  or  so.     That  fence 
extended  something  like  seven  chains  down  the 
bank,  from   where   the   upper  fence    struck   the 
river  in  the  year   1858.     It  extended   the  whole 
distance   down  to  the   Str.itton   line.     I   cannot 
tell  how  far  it  extended  before  there  was  a  break 
in  it.     I  think  there  was  two  or  three  ro.ls  where 
there  was  no  fence  at  all.     It  might   have    been 
four,     I  think  there  was  no  fence  above  this  old 
75  fence.     I  suppose    this  fence    corner    might   be 
something  near  three  or  four  rods  above  the  Ter- 
rell line  and  Smith  line.     I  never  thought  to  vi  }w 
it  so  as   todetermine  the   distance,  but   three   or 
four  rods  above  the  Terrell  and  Smith  line.     The 
purpose  of  the  fence  in   1858   ami  1859   was  to 
enclose  a  small   piece  of  land   which   I  used   as  a 
garden.     Where   Terrell   established   his  corner 
was  but  a  few  feet  from  the  corner  of  the  end  of 


2G 

the  fence.     Tliere  was  a  small  fence  at  the  time 
76  that  lie  made  his  survey.     It  ran  down  the  river. 


77 


Peter  McNamee, 

A  witness  on  behalf  of  plaintiff,  being  duly 
sworn,  testified: 

My  father  and  I  live  on  lots  6  and  7  of  section 
31,  Township  1,  Range  2,  I  know  it.  I  got 
Smith  the  County  Surveyor  to  survey  it,  to  see 
how  much  there  w*as  in  it,  between  the  Ranch 
and  McCusker's  end  of  the  line. 

Counsel  for  the  defendants  moved  to  s'rike  out 
the  above  answer,  on  the  ground  that  tlie  inf)rm- 
ation  of  witness  was  hearsay. 

The  Court  overruled  the  objection  and  defend- 
ant excepted,  and  his  exception  was  noted, 

I  know  the  land  described  in  the  complaint. 
It  is  a  part  of  the  1  ind  described  in  the  patent, 
and  surveyed  by  Smith.  I  do  know  who  is  in  pos- 
session of  the  land  in  controversy.  It  is  McCus- 
ker.  I  know  the  land  from  the  description  of 
the  fen 'e,  and  the  boundaiies  given. 

Being  Cross-ExamIxNEd 
y^        By  yi'r.  Brooks,  he  testified: 

I  know  lots  5  and  G,  because  Smith  ran  out  the 
line  and  located  the  land.  1  know  he  did  it  be- 
Ciiuse  my  father  got  him  to  locate  it  and  run  out 
the  line.  He  drew  a  plat  of  it  which  I  suppose 
is  here.  This  is  the  map.  I  know  lots  5  and 
6,  because  Smith  made  the  survey  of  them  at  the 
request  of  my  futher,  and  made  a  plat  of  them, 
and  I  (ind  on  the  map  something  about  lots  6 
and  7. 


27 

I  know  the  land  described  in  the  coinpbiint  as 

79  lots  six  and  seven  of  section  31,  hecanse  the  deeds 

from  the  Government  show  that.     1  know  what 

tliis  suit  is  about.     It  is  about  this  land  my  father 

lives  on  now.     I  know  tliat  tiie  land  is  part  of 

lots  G  and  7,  because  it  was  run  out  and  located 

by  Smith.    Smith  ran  the  courses  to  see  how  much 

land  there  was  on  it  and  how  much  there  was  on 

the  outside.     That  was  what  Smith  did,  to  run 

the  lower  line  of    the  San  Cayetano  Ranch,  to 

see  how  much  land  there  was  between  that  and 

the  Stratton    line.     He    ran  tlie  courses  to    see 

liow  much  there  was  between  the  lines. 
8') 


Ebenezer  Niediver, 

A  witness  on  behalf  of  plaintiff,  being  duly 
sworn,  testified : 

I  have  been  engaged  in  surveying  and  farming. 
Some  14  years  I  have  been  engaged  in  surveying. 
I  know  something  about  the  San  Cayetano  Ranch* 
1  do  not  distinctly  know  where  the  southern 
boundary  of  the  ranch,  known  as  Terrell  line, 
t^l  touches  the  Pajaro  river.  I  know  nothing 
about  where  the  survey  of  Smith  touches  the  river, 
but  the  course  wh'ch  was  pointed  out  to  me  as 
the  place  ''  C  and  L." 

I  know  where  there  is  a  post  marked  "  B.  S.  C, 
11,"  which  was  pointed  out  to  me  as  the  post  es- 
tablished by  Stratton.  The  post  is  situated  from 
Shattuck's  house,  north,  I  should  think,  some 
two  or  three  chains.     I  chained  the  bottom  of 


28 

that   Stratton  line,  from   the  river  to  the  table- 

82  land.  The  width  of  that  bottom  from  the  river 
from  the  Stratton  corner  to  the  table-land,  is  5 
chains  and  80  links.  My  object  in  chaining  it 
was  to  find  out  the  width  of  the  bottom.  9 
chains  and  ten  links  was  the  width  of  it.  That 
point  is  above  the  Stratton  line — 3  chains  and 
40  links  above  the  Stratton  line.  I  know  noth- 
ing more  about  the  Smith  line  than  as  it  was 
pointed  out  to  me. 

Being  Cross-Examined 

83  ^^y  ^^^-  Bi'ooks: 

I  only  chained  to  the  edge  of  the  river,  but 
I  think  it  would  be  6J  or  6J  chains  from  the 
table-land  to  the  river,  on  the  Stratton  line.  We 
did  not  chain  it  only  to  the  edsfe  of  the  bottom. 
From  where  I  commenced  to  descend,  fro'u  the 
table  land  to  the  river,  it  would  not  be  eleven 
chains;  it  would  be  something  over  6  chains  from 
the  table  land  to  the  river.  Yes,  from  the  bank, 
at  the  edge  of  the  bottom  land.  That  is  the 
best  of  my  recollection,  but  I  did  not  chain  it. 
I  was  employed  to  chain  the  river  to  where  the 
^^  land  commences  to  rise.  I  did  not  chain  the  land 
from  the  point  from  where  it  commences  to  de- 
scend. 


Kingsley  King, 

A   witness  on  behalf  of  plaintiff,    being  duly 
sworn,  testified: 


29 

I  know  the  Shattuck  house  spoken  of  here. 
85  The  other  day  I  saw  the  course  established  there 
by  Stratton  in  18G2,  near  the  house.  I  formerly 
lived  there.  I  took  the  place  up  in  1852,  along 
in  the  fall,  and  I  lived  there  till  the  first  day  of 
November,  1857.  There  was  no  fence  below  the 
Stratton  stake  on  the  river.  I  did  not  see  any 
there  since  there  was  none  below  that  on  the 
river. 

Being  Cross-Examined, 

By  Mr.  Broohs.     I    have    been    on    it   twice 

since   1857.     I  l)uilt  a   house   there.     It   stands 

86 

there  now.     1  built  a  fence  from  the  house  to  the 

river,  about  -JS  j^ards  from  the    present  line  of 

fence.     I  think  there  is  a  poi'tion  of  it  there  now, 

towards  the  hollow.     The  fence  does  not  stand 

in  the  same  place,  but  I  should  judge,  from  the 

appearance    of  the    timber,  that  it    is  the  same 

fence.     It  was  a  rail  and  post   fence — it  was  a 

substantial  fence      I  think  that  same  timber  is 

there  now.     I  did  not  build  any  fence  along  the 

river.    I  did  not  see  the  fence  from  the  time  I 

left  it,  in  November,  '67,  for  six  months  afler- 

87  wards.     I  was  next  on  the  property  in  1859.     It 

was  along  in  the  spring  sometime.     There  looked 

to  be  about  the  same  fencing  as  when  I  left,   [did 

not  notice  any  more.     I  think  there  was  more  at 

the  time,  between  me  and  McCusker's  house.     I 

did  not  notice  any  fence  on  the  river  bank.     There 

was  a  fence  that  run   along  upon  the  Bluff.     In 

the  summer  of  1859,  when  I  first  saw  it,  I  had 

a  fence  that  was  attached  to  it.    (Witness  pointed 


89 


30 

out  on  tlie  map  where  these  fences  were.)  This 
fence  was  about  forty  yards  fiom  the  river.  It 
ran  up  on  the  Bluff  200  yards.  I  saw  where  the 
Smith  line  was  said  to  terminate  on  the  river.  I 
saw  a  stake  there  to  make  the  point.  I  did  not 
notice  any  fence  at  that  point  in  1858  or  1859. 
At  that  point  there  was  none  there,  when  I  sold 
it.  The  fence  I  speak  of,  which  ran  along  the 
Bluff,  was  about  half  way  below  that.  It  was 
about  35  yards  from  the  lower  line  up  to  where  I 
had  my  fence.  The  rnap  represents  the  shape  of 
the  country  pretty  well,  where  the  line  strikes 
the  Pajaro  river. 

Re-direct  Examination. 

When  I  lived  there,  there  was  no  fence  along 
the  bank  of  the  river  up  to  the  Stratton  line — 
there  was  another  house  there  besides  the 
Shattuck  house  above  it.  I  think  it  was  75 
yards  above  Shattuck's  house.  Shattuck  suc- 
ceeded me  in  my  possession.  I  don't  know  if  he 
did  take  possession  soon  after.  I  then  left  for 
the  lower  country,  and  he  was  there  when  I 
90  came  back.  It  stands  in  the  same  position  as 
when  I  left  it. 

The  plaintilT'  here  rested. 

Counsel  for  defendants  moved  for  a  nonsuit, 
on  the  ground  that  plaintiff  had  not  shown  any 
title  to  the  land  described  in  his  complaint. 

The  Court  denied  the  motion  to  which  defend- 
ant, by  his  counsel,  duly  excepted. 


The  defendant    then,  to  maintain    the    issues 
91  joined  on  his  part,  called  as  a  witness: 

Daniel  McCnsker, 

Who,  being  duly  sworn,  testified  as  follows: 
I  know  the  land  in  controversy  in  this  suit.  I 
have  known  that  land  since  1853.  I  know  the 
point  on  the  river  where  the  Smith  and  Stratton 
lines  terminate.  I  have  known  that  land  for  some 
time.  I  was  not  there  when  the  survey  was  made 
by  Terrell.  There  was  only  one  fence  there  in  the 
summer  of  1858.  It  was  right  on  the  Stratton 
line.     That  fence  did  run  down  to  the  water,  in- 

' "'  to  the  water.  The  make  of  the  land,  at  that  point, 
was  a  kind  of  mud  flat,  from  the  bank  on  the 
river.  The  make  of  the  shore  w^as  a  kind  of 
bottom  land.  The  length  of  the  bottom  land, 
from  the  river  to  the  table-land,  is  9  or  10  chains 
on  the  line  of  the  Stratton  fence.  On  the  Smith 
line,  it  is  probably  8  rods  till  you  strike  this  bluff; 
over  the  bluff  till  vou  come  to  this  sloii2;h,  it  is 
probably  four  or  five  chains.  There  is  a  little 
bottom  land,  between  that  high  point  and  the 
river.    That  map  annexed  to  the  patent  represents 

93  the  topography  of  the  country  at  the  river.  I 
was  present  when  Stratton  ran  that  line.  I  was 
present  when  he  ran  that  line  on  the  Pajaro 
river.  I  was  present  at  the  conversation  between 
Stratton  and  Shattuck.  and  there  must  have  been 
eight  or  ten  others  present.  What  took  place 
was  this :  I  didn't  own  the  land  at  the  time.  We 
were  quarrelling  about  the  line.  After  some  con- 
versation, Shattuck  finally  said  to  Stratton.  that 


32 

he  (Sliattuck)  must  "  give  it  up," — that  he  (Strat- 

94  ton)  was  within  two  or  three  feet  of  the  stake 
which  Terrell  put  down.  Stratton's  stake  or  cor- 
ner was  right  where  the  fence  was,  a  little  piece, 
probably  two  or  three  feet,  from  the  posts,  right 
up  against  the  slats.  It  was  a  kind  of  a  slat-fence. 
It  was  kind  of  old.  I  would  suppose  it  was  there 
some  13  or  14  years.  It  had  been  there  as  long 
as  I  have  known  the  land.  There  was  not  any 
fence  running  along  the  bank  from  that  point  up. 
Shattuck  came  there  inXovember,  and  that  stake 
was  put  there  in  June  following.     There  was  no 

fence  there  terminating  at  the  river,  above  the 

95  • 

Stratton  line.     I  think  there  was  no  fence  there 

but  this  one.  Stratton  marked  the  line  after  it 
was  established  b}^  him.  He  put  stakes  down  in 
every  place,  so  as  to  put  a  fence  on.  After  the 
line  was  established,  the  fence  was  put  there  in- 
side of  a  year.  Shattuck  put  up  half,  find  I  put 
up  some.  Shattuck  paid  half.  I  put  up  some, 
and  McNamee  put  up  some.  Shattuck  paid  his 
half,  and  the  others  paid  half.  1  think  that  map, 
(Smith's,)  does  not  give  the  proper  position  of  the 
fences  that  cross  that  line.  My  west  fence  is 
90  about  half  a  mile  from  the  Pajaro  river.  The 
fence  runs  between  me  and  McNamee,  on  the  ranch 
line, — that  is,  on  the  regular  section  line.  The 
fence  nearest  the  river  takes  the  course,  I  think, 
about  east  and  west.  That  fence  is  no  regular 
line  between  Shattuck  and  I.  I  should  think  it 
is  east  and  west.  The  fence  which  was  put  up 
by  me  was  a  substantial  fence  and  a  good  one ; 
the  other  fence  would  turn  stock.     It  was  so  cal- 


33 

ciliated,  according  to  the  Stratton  survey,  to  be  a 
1)7  permanent  boufidary;  tliut  line  was  acquiesced, 
until  this  township  was  laid  out,  about  three  or 
four  years  ug;o.  I  think  about  three  years  ago. 
The  deed  from  me  to  Shattuck  was  a  deed  of  ac- 
coniniodation.  I  lived  in  another  township,  and 
we  both  had  lands  on  eacli  sido  of  the  township 
line.  He  entered  Jie  land  for  me  adjoining  his  in 
his  township,  and  I  entered  land  for  him  adjoin- 
ing mine  in  my  township.  Finally,  we  agreed  to 
deed  this  land  back  again.  We  both  made  loca- 
tions of  school  lots,  and  wo  both  quit-cl.iimed  to 

each  other. 
08 

Defendants  then  ofiered  and  i-ead  in  evidence  a 
deed  from  Shattuck  to  ^[cCusker,  dated  March 
3d,  18G4,  cind  recorded  on  the  same  day;  page 
550,  Book  E.,  which  deed  is  in  substance  as 
follows: 

Munroe  Shall iick  to  Daniel  MeCusker. 

Deed  dated  March  od.  18G4, 

Consideration,  $1. 

(xrants,  bargains,  sells,  remises,  conveys  and 
9^  quit-claims  all  the  rig'it,  title  and  interest  of 
party  of  the  first  i)art  to  tlie  following  described 
land,  located  by  the  i);irty  of  the  first  part  under 
tlie  law  relative  to  the  sale  of  the  five  hundred 
thousand  acres  of  land,  donated  to  the  Slate  for 
school  purposes,  and  the  seventy-iwo  sections 
doniited  to  the  State  for  the  use  of  a  seminary  of 
learning.  Approved  April  23,  1858,  and  of  tlie 
Acts  amendatory  thereof.     Approved    Feb.    18, 


34 

1859  and  April   22,  1861.     Located   by  Leander 

100  Ransom,  State  Locating  Agent,  on  the  14th  day 
of  March,  I860,  and  approved  by  the  State  Sur- 
veyor-General of  California,  on  the  27th  day 
of  June,  1863.  and  is  the  N.  E.  J  of  S.  E.  i  sec. 
Scd.  of  sec.  06,  and  that  part  of  the  S.  E.  i  of 
N.  E.  J  Scd.  of  sec.  36,  lying  east  of  the  present 
division  fence  of  party  ^f  first  part  and  party  of 
the  second  part,  and  west  of  the  east  boundary 
of  sec.  ^^>6,  and  north  of  the  J  section  line  running 
west  through  the  middle  of  sec.  36,  township  12 
south,  range  1  east,  Mount  Diablo  meridian,  being 

,   about  fifty-nine  acres  of  land  in  both  of  the  above 

101  ,        .,     , 
described  tracts. 

Acknowledged  March  4,  1864. 

Recorded  March  9,  1864. 

To  the  introduction  of  this  deed  as  evidence, 
plaintiff's  attorney  objected.  Court  overruled 
the  objection,  and  plaintiff  excepted. 

Being  Cross-Examined 

By  Mr.  Craig,  he  testified.  I  think  that  fence,  the 
fence  specified  in  the  deed,  runs  about  east.  1  could 
not  tell  correctly  the -course  it  takes.     It  was  tliere 

102  lor  15  or  16  years  That  is  not  the  fence  run- 
ning on  tlie  Stiatton  line,  but  it  goes  to  that 
line.  It  joins  to  the  fence.  The  fence  between, 
is  nottlie  lanch  fence — it  runs  up  to  one  side.  I 
was  opposed  to  the  Stratton  line.  It  was  estab- 
lished about  four  years  ago  last  winter.  At  that 
time  I  objected  to  it,  because  we  understood  that 
they  had  too  much  in  the  ranch.  I  did  charge 
Stratton  with    running  too  far  down.     The  Ter- 


35 

rell  stake  was  washed  out  in  1863  or  18G4.  I 
103  saw  it  there,  and  I  was  there  wlien  it  was  planted 
at  tlie  Stratton  corner.  That  is  tlie  only  corner 
I  know.  I  never  saw  any  stake  at  tlie  upper  end. 
That  is  the  Tcrixdl  line,  and  the  only  line  I  know. 
I  saw  the  Terrell  stake  in  1863.  I  saw  it  when 
I  brought  overproduce  to  ship;  the  boat  was  tied 
to  that  fence.  I  never  saw  the  Terrell  stake  up 
to  the  Smith  line;  they  say  that  Smith  set  it  there. 
Shattuck  built  that  fence  up  the  river  from  Strat- 
ton  line,  as  now  surveyed,  up  to  the  Smith  line 
1  think  it  was  after  1860.  1  think  so.  I  cannot 
tell  you  whether  I  am  as  positive  of  that  fact  as 
I  am  of  other  facts  to  which  1  testified.  I  told 
you  that  stake  was  put  there  in  1860  or  1861,  I 
think.  1  saw  a  stake  there,  marked.  It  was  the 
only  stake  I  saw  there. 

Re-direct  Examination. 

There  were  three  surveys  of  the  ranch.  A'al- 
lejo  had  a  survey  made  of  it,  jireliminarily,  in 
1855  or  1856.  1  knew  this  land  at  that  time. 
The  stake  that  I  speak  of  is  not  the  Terrell  stake 
that  stood  there  at  that  time.  The  stake  that 
X05  stood  there  at  the  end  of  the  fence  was  a  private 
survey.  It  was  a  small  stake,  separate  from  the 
fence,  driven  in  the  gi'ound  on  purpose.  It  had 
some  marks  on  it.  It  was  right  on  the  bank  of 
the  river.  The  hanks  were  low  at  that  place, 
about  three  or  four  feet  high.  1  suppose,  in 
floods,  the  tides  go  up  to  it — to  the  stake  set 
by  Stratton,  I  think  the  water  has  been  up  to  it 
at  hio'h  water. 


36 

Defendant  next  offered  and  read  in  evidence 

106  the  deposition  of  G.  H.  Thompson  of  San  P^ran- 
cisco,  which  were  in  the  words  and  figures  follow- 
ing: 

[title  of  court  and  cause.] 

It  is  hereby  mutually  stipulated  and  agreed  by 
and  between  the  respective  parties  to  the  above- 
entitled  action,  that  the  testimony  of  G.  H, 
Thompson  be  taken,  on  behalf  of  said  defendants 
before  John  A.  Barham,  Esq.,  a  Notary  Public 
in  and   for  the  County  of  Santa  Cruz,  State   of 

107  California,  at  his  office  in  Watsonville,  in  said 
County,  at  the  hour  of  3  o'clock,  p.  M.,on  this  9th 
day  of  March,  1870.  And  that  when  said  deposi- 
tion is  so  taken  before  said  notary,  in  writing, 
upon  interrogations  by  the  respective  paities  and 
in  their  presence,  the  same  may  be  read  in  evi- 
dence on  the  trial  of  said  cause,  subject  to  no 
other  or  further  objection  or  exception  whatever 
than  its  relevancy,  competency  or  materiality,  it 
being  the  true  intent  and  meaning  hereof  to 
waive  all  technical  objections  and  exceptions 
hereto,  such  as  want  of  time  and  place,  and  no- 
tice of  taking;  and  to  agree  that  the  same  shall 
be  subject  to  the  objec'ions  above  stated,  and  no 
others. 

Craig  k  Barham, 
Plaintitl's  Attorneys. 

Julius  Lee, 

Attorney  for  Defendant. 


37 


100  [title  of  roriir  and  (wrsi-;.] 

l^e  it  reinembor('(l:  Tliat  piii-sinml  to  the  stip- 
ulation lioruto  iinuexcd  and  marked  "  A,"  and  on 
tlie  Dtli  day  of  Marcli.  a.  d.  1 87(1,  at  niy  ollice  in  the 
town  of  Watsonville,  County  ot  Santa  (.'ruz,  and 
State  of  California,  before  me,  .John  A.  Bai  ham,  a 
Notary  Public  in  and  for  the  s  lid  County  of  Santa 
Cruz,  duly  a[)i)oin!ed,  commissioned  and  sworn, 
with  due  and  leojal  authority  to  administer  oaths, 
kc,  &c.,  personally  api)eared  C  II.  Thompson,  a 
witness  produced  on  behalf  of  the  defendants  in 
11^  the  above-entitled  action,  now  pending  in  the  said 
Court,  who,  being  by  me  first  duly  sworn,  was 
then  and  tliere  examined  and  interrogated  by 
Julius  Lee,  Esq.,  of  counsel  for  said  defendants, 
aiid  by  A.  Craig,  Ks(|..  of  counsel  for  said  ])]ain- 
tilf,  and  testilied  as  f(;llows: 

Question.  What  is  \-our  nime,  age  and  place 
of  residence  ? 

Answer  G.  IT.  Thompson,  agi?  thirty-four 
years,  place  of  residence  San   Francisco. 

Q.  What  is  your  business  or  occupation,  and 
111  how  long  have  you  been  engaged  in  it  ? 

A.  I  am  a  siu'V-yor;  b -en  en^a^cd  in  that 
business  for  nearly  thirteen  years. 

Q.  Do  you  know  the  J^olsa  de  San  Cayetano 
Rancho,  in  Monterey  County,  and  if  so,  how  long 
have  you  known  it,  and  under  what  circumstan- 
ces did  you  become  acquainted  with  it? 

A,  I  have  known  the  rancho  l^olsa  de  San 
Cayetano  since  the    spring  of  a.  d.  1858.      I  lirst 


2i)  I U'^ 


became  acquainted  with  it  in  assisting  the  mak- 
112  ing  the  official  survey  thereof. 

Q.  At  what  time  was  this  survey  made  in 
which  you  assisted,  and  who  was  the  Surveyor 
making  the  survey  ? 

A.  I  think  the  survey  was  made  in  June,  a.  d. 
1858,  and  James  E.  Terrell  was  the  United  States 
Deputy  Surveyor.  Mr.  Terrell  was  not  himself 
a  practical  surveyor,  but  he  employed  Mr. 
Clement  Cox,  a  practical  surveyor,  to  run  the  in- 
strument under  his  (Terrell's)  direction. 

Q.  State  all  who  were  present  at  the  time  of 
making  the  survey  of  said  ranches? 

A.  James  E.  Terrell,  Clement  Cox,  a  man 
named  Z.  Moore,  a  man  named  Perkins,  myself 
and  some  others,  whom  1  don't  recollect. 

Q.  Is  3'Our  recollection  distinct  as  to  the 
manner  in  which  the  southwesterly  boundary 
line  of  that  ranclio  must  run  at  that  time  ? 

A.     It  is  quite  distinct. 

Q.  Have  you  since  been  upon  the  premises  to 
inspect  them  ? 

A.     I  have.     I  was  thereto  day. 

Q.  Please  describe  how  that  southwesterly 
114  boundary  line  was  run,  and  where  the  corner  on 
the  bank  of  the  Pnjaro  river  was  established  at 
that  time  by  that  survey? 

A.  It  was  run  through  from  the  estero  in 
several  courses,  and  afterwards  a  straight  course 
was  calculated  through,  from  the  corner  on  the 
estero  to  the  corner  on  the  Pajaro  river,  which 
was    in    a  small    bottom,  at  the  end  of    a  fence. 


Tlie  cornor  was  established  by  a  marked  post  im- 
11.")  niediatidy  on  tlie  bank  of  tlio  river. 

Q.  Wliat  natural,  or  otlier  ()])jects,  did  you 
pass,  in  running  thatlin(^  toestal»lish  that  corner, 
and  what  distaixte  from  ihem  did  you  pass? 

A.  About  thirty  rods,  before  reaching  the 
terminus  of  the  line  on  the  bank  of  the  liver^ 
are  descended  from  the  table- land  into  the  river 
bottom,  and  passed  about  tiiree  or  four  rods  to  the 
east  of  a  small  house  about  half  way  between  the 
table-land  and  the  livcr. 

Q.     When  you  examined  the  premises  to-day, 
as  you  have  stated,   did   you  rocoo^nize  the  place 
'  where  you  estiblishod  that  corner  on  the   bank 
of  the  river  in  making  that  survey? 
A.     I  did. 

Q.  Describe  now  where  that  place  is.  with 
reference  to  any  objects  at  present  there. 

A.     It  is  about  at  the  same  place  where  there 
is    now    the    corner    of  a   fence,  and  a   marked 
i-ed-wood    post,     and    the    same    house     before 
referred  to  is  still  standing  there. 

Q.  How  is  the  red-wood  post  you  referred  to 
marked  ? 

A.  I  noticed  some  marks  on  it,  but  did  n-it 
exaujine  particularly  what  they  were. 

Q.  ]s  the  corner  of  the  fence  you  speak  of 
the  same  fence  that  was  there  when  you  made 
the  survey? 

A.  I  do  not  know  that  it  is  the  same  fence, 
but  think  that  it  is 

Q.  Do  you  know  who  placed  the  stake  on 
the  bank  of  the  river  which  you  saw  to-day? 


40 

A.     I  <lo  not. 

118  Q.  State  whether  or  not  there  is  a  fence  on 
tlie  line  from  this  stake  to  the  other  corner  on 
the  Estero  that  you  spoke  of? 

A.  I  do  not  know  whether  there  is  a  fence 
exactly  on  the  line.  There  is  a  fence  near  about 
on  a  portion  of  the  line. 

Q.  Following  up  the  bank  of  the  river  from 
this  stake,  what  is  the  character  and  topography 
of  the  country,  and  what  objects,  if  any,  did  you 
observe  there  ? 

Objected    to    by  plaintiff's    counsel,    upon  the 

grounds  that    the  same   is  incompetent;    that    it 

119  .  . 
does  not  appear  that  the  witness  knows  anything 

about  the    topography,  or    line  running    up  the 

river. 

A.  There  is  a  small  bottom  extending  about 
twelve  or  fifteen  chains;  from  thence  the  river  has  a 
precipitous  bluff*  bank,  and  I  noticed  another  red- 
wood stake,  with  some  letters  marked  on  it,  near 
the  upper  end  of  the  small  bottom. 

Q.  Do  you  remember  what  the  letters  were 
on  this  stake  ? 

A.     I  do  not,  as  I  did  not  examine  them  particu- 

120  larly. 

Q.  What  is  the  distam^e  of  this  s'ake  above 
the  other  stake,  at  the  corner  of  the  rancii  you 
have  mentioned  ? 

Objected  to  by  plaintiff",  as  incompetent, 
A.     1  did  not  measure  the  distance,  but  should 
judge  it  to  be  about  ten  chains. 

Q.     Is  this  upper  stake  the  corner  of  the  ranch, 


41 

as  established  by  tlie  survey  you  speak  of  as 
121  nia<le  in  a.  d.   1858? 

A.     It  is  not. 

Q.  Is  the  lowor  stake  you  speak  of,  at  or  near 
the  corner  established  by  that  survey  ? 

A.     I  think  it  is  about  tiie  same  place. 

Q.  Do  you  know  the  course  of  this  southwest- 
erly boundary  line,  from  the  corner  you  speak 
of  on  the  estero  or  slou<i;h  ? 

A.     I  do  not. 

Q.     Do  you  know  how   that  line  came  to  be 

run  in  the  corner  it  was? 

A.     I  do  not  now  recollect. 
122 

Q.     Do  you  recollect  whether  that   line  was 

established  by  actual  surve}^  or  calculation  ? 

A.  It  was  established  by  calculation  from  an 
actual  survey. 

Q.  Vv^ill  you  explain  a  little  more  fully  how 
the  actual  survey  was  made  from  which  the  cal- 
culation was  had  ? 

A.  By  chaining  a  line  from  the  estero  across 
to  the  river,  in  several  courses  from  which  the 
straight  line  between  the  two  points  was  calcu- 
lated. 
123  Q.  Had  the  two  points  you  have  named,  to 
wit:  the  point  on  the  estero  and  the  point  on  the 
Fajaro  river,  been  established  before  this  south- 
westerly line  was  run  or  calculated. 

A.  The  two  points  were  established  before 
making  the  calculation. 

Q.  How  near  does  this  lino  run  to  the  small 
house  you  speak  of? 


42 

A.  I  think  it  will  run  or  pass  about  three  or 
124  four  rods  to  the  east  of  the  small  house. 

Cross-Examination. 

Q.  In  what  particular  capacity  was  you  act- 
ing in  1858,  the  time  that  survey  was  mad  a,  as  a 
surveyor,  or  chain  carrier,  or  employee  of  the 
Deputy- Surveyor  ? 

A.  I  was  employed  and  acting  as  chain  car- 
rier. 

Q.  Have  you  been  on  the  premises  at  any 
time  since  1858  up  to  and  until  to-day? 

A.  I  have  not,  excepting  merely  to  pass  along 
"^  the  road  through  the  ranch. 

Q.  About  how  far  is  the  road  you  pass  from 
the  river  at  this  point  ? 

A.     About  two  and  a  half  or  three  miles. 

Q.  Is  the  topography  of  the  country  such 
that  you  can  see  the  point  on  the  river  and  house 
you  refer  to,  from  the  road? 

A.     I  think  not;  I  think  you  can't  see  them. 

Q.  Then  you  have  not  seen  this  point  on  the 
river  about  which  you  swear,  for  twelve  years  ? 

A.  I  have  not  seen  it  since  the  time  of  mak- 
126  ^"g  the  survey,  in  1858. 

Q.  Is  not  the  end  of  the  fence  to  which  you 
have  referred  in  your  examination  in  chief  as  be- 
ing the  lower  stake  and  fence,  the  north  end  of 
the  fence  which  you  speak  of  as  running  along 
as  near  the  line,  and  being  the  division  line  of 
McCusker's  premises  ? 

A.  It  is  the  north  end  of  the  fence  to  which  I 
referred  as  running  along  or  near  the  line;  but 


43 

as  to  its  being  a   division   fence  of   McCiisker  I 

127  know  nothing  about, 

Q.  Was  this  line-fence  there  at  the  time  you 
carried  the  chain  in  1858? 

A.  I  do  not  recollect  of  any  fence  excepting 
in  the  river  bottom. 

Q.  About  how  long  was  that  fence  in  the 
river  bottom? 

A.     1  think  it  was  about  thirty  rods. 

Q.  Was  you  there  as  chain  carrier  at  the  run- 
ning of  the  line  up  the  Pajaro  river,  or  northern 
boundary  of  the  rancho  ? 

A.     1  was  present  and   carried    the   chain    in 

128  .  . 

running  the  line  along  the  Pajaro  river. 

Q.     When  was  that? 

A.     At  the  time  the  survey  was  made  in  1858. 

Q.  Where  did  they  commence  to  run  that 
line? 

A.  In  the  Pajaro  river,  at  the  northeast  cor- 
ner of  the  ranch. 

Q.  Was  it  not  run  from  the  northwest  corner 
of  the  ranch  at  that  time — from  a  point  on  the 
Pajaro  river,  easterly? 

A.     I  think  the    two   first    courses  from    the 

129  northwest  corner  of  the  ranch  were  run  up  the 
lines. 

Q.  Your  estimate  of  distance  of  rods  and 
chains  from  the  house  and  from  where  the  line 
descends  into  low  lands  from  the  tei-minus  of  the 
lines  there  is  not  made  from  any  survey  made  by 
you,  but  simply  from  your  observation  and  re- 
collection of  the  lay  of  the  country  in  18.JS  ? 

A.  Only  from  my  obseivation  and  recollec- 
tion. 


44 

Q.     About  how  many  rods  is  it  from  the  upper 
130  stake  on  the  river  you  spoke  of,  to  the  precipitous 
or  bluff  batik  up  the  river  ? 

A.  The  ascent  of  the  bank  commences  at 
about  eight  or  ten  rods;  it  is  perhaps  twenty- 
five  rods  to  the  top  of  the  bank  up  the  river  or 
easterl}^ 

Q.  On  a  line  commencing  at  the  upper  stake 
and  running  through  on  a  straight  line  to  the 
southeast  corner  of  the  ranch  on  the  estero,  about 
how  many  chains  is  it  from  the  upper  stake  to 
where  the  line  would  ascend  into  table-land  ? 
-„-       A.     About  two  chains. 

Q.  Commencing  at  the  lower  stake  on  the 
river  and  running  to  the  southeast  corner  of  the 
ranch,  how  far  is  it  to  where  it  ascends  the  table- 
lands ? 

A.     About  seven  or  eight  chains. 

Q.     Did  you  notice  that,  particularly,  to-day  ? 

A.     I  did. 

Q.  At  the  time  the  calculated  line  you  say 
was  run  from  the  southeast  corner  of  the  ranch 
to  the  river,  was  there  any  stations  or  monu- 
ments erected  ? 
132  A.  There  were  no  monuments  erected  of  any 
kind,  that  I  can  recollect  of,  excepting  at  the  be- 
ginning and  terminus  of  the  line. 

Q.  Do  you  know  whether  there  were  any  sta- 
tions or  section  corners  along  that  line,  by  which 
the  line  was  established  ? 

A.  None,  excepting  at  the  south  east  corner 
on  the  estero,  which  is  connected  with  the  section 


45 

corner,  which  .southeast  corner  on  estero  is  near 
133  a  quarter  section  corner  on  the  starnlard  line. 

Q.  Where  the  lower  stake,  about  which  you 
speak,  is  situated,  has  any  of  the  Pajaro  river  bank 
washed  away  since  you  were  there  in  1858? 

A.  From  appearances,  a  very  little,  if  any, 
of  the  bank  lias  been  washed  away. 

Q.  What  was  the  course  of  that  fence  wliicli 
you  speak  of  having  been  there  in  1858? 

A.     I  do  not  know  the  exact  course. 

Q.  On  a  Hue  running  through,  from  the  lower 
stake,  was  the  bottom  a  level  bottom  in  1858? 

A.  In  runninof  from  the  lower  stake  on  the 
river,  in  the  direction  of  the  corner  on  the  estero, 
the  bottom  is  level  for  seven  or  eight  chains,  to 
where  the  line  ascends  the  table-land. 

Q.     Was  there  any  brush  on  that  line  in  that 

bottom  in  1858? 

A.     I  think  tliere  was  some  willows. 

Q.  On  a  line  from  the  corner  of  the  estero  to 
the  upper  stake,  does  not  the  line  descend  into 
low  or  marshy  lands,  ten  or  twelve  chains,  before 
reaching  the  bank  of  the  river? 

A.  It  crosses  a  low^  narrow  place,  extending 
135  from  the  bottom  lands  up  into  the  table-lands. 

Q.  After  crossing  that  narrow  place,  over  what 
kiud  of  land  would  it  run  from  there  to  tiie  river? 

A.     Over  high  point  of  table-land. 

Q.  About  what  is  the  altitude  of  that  table- 
land immediately  where  the  lino  would  cross 
above  the  bottom  land  ? 

A.  I  should  think  it  was  from  twenty  to  thirty 
feet. 


4G 

Q,  Bo  you  know  the  course  that  a  line  run 
136  from  the  point  on  the  estero  to  either  point  on 
the  Pajaro  river  ? 

A.     I  do  not. 

Q.  Who,  if  any  one,  directed  your  attention 
to  what  you  have  termed  the  upper  stake  in  your 
examination  ? 

A.     Mr.  McCusker. 

Q.  Do  you  not  know  that  the  so-called  lower 
stake  was  placed  where  it  now  is  by  one  Sirat- 
ton,  after  this  rancho  was  patented  ? 

A.     I  don't  know  when  nor  by  whom  it  was 

put  there. 

137 

Q.     Is  there  any  other  fence  at  or  near  the 

Pajaro  river,  where  the  said  lower  stake  is  situa- 
ted, than  that  which  runs  along  or  near  the  line 
of  which  you  spoke  in  your  examination  in  chief  ? 

A.  There  is  a  picket  fence,  or  some  pickets, 
along  the  bank  of  the  river. 

Q.  Was  there  any  person  living  in  the  house 
you  speak  of,  at  the  time  you  speak  of,  in  1858  ? 

A.  I  was  not  in  the  house  at  that  time,  though 
I  think  it  was  inhabited. 

Q.  Are  you  sure  that  that  house  still  stands 
133  where  it  did  in  1858  ? 

A.  I  am  quite  certain  that  the  house  novV 
standing  there  is  the  same  house,  and  stands  in 
the  same  place  where  it  did  in  1858. 

Q.  If  the  north  line  of  the  San  Cayetano 
Rancho  was  run,  by  commencing  at  the  north- 
east corner  of  the  ranch,  down  to  the  northwest 
corner  of  the  ranch,  and  the  courses  and  distances 
along  the  meandering  of  the  river  taken,  could 


47 

those  courses  and  distances  be  correctly  given  by 
139  commencing  at  the  northwest  coi-ner,  and  run- 
ning thence  to  the  nortlieast  corner,  without  a 
survey  of  the  line  from  the  northwest  corner  to 
the  northeast  ? 

A.     Certainly,  just  as  correctly. 

Q.  Would  that  then  not  be  what  you  term  a 
calculated  line  ? 

A.  It  would  not  be,  as  it  requires  no  calcula- 
tion whatever;  the  courses  are  nearly  reversed. 

(t.  Howard  Thompson. 


110 


State  of  California,      ] 
County    of   Santa  Cruz,  ) 

I,  John  A.  Barham,  a  Notary  Public  in  and  for 
Siud  County  of  Santa  Cruz,  do  hereby  certify 
that  the  witness  in  the  foregoing  deposition 
named,  was  by  me  duly  sworn  to  testify  the 
truth,  the  whole  truth  and  nothing  but  the  truth. 
That  said  deposition  was  taken  at  tlie  time  and 
place  mentioned  in  the  annexed  stipulation, 
•^^^  marked  "  A.'"  to  wit:  At  my  office,  in  said  town 
of  Watsonville,  County  of  Santa  Cruz,  in  the  State 
of  California,  and  on  the  9th  day  of  Marcli,  a.  d. 
1870,  between  the  liours  of  o  v.  m.  and  9  p.  m.  of 
that  day;  that  said  deposition  was  reduced 
to  writing  by  me,  and,  when  completer],  was  by 
me  carefully  read  to  said  witness,  and  being  by 
him  corrected,  was  by  him  subscribed  in  my 
presence. 


48 

In  witness  whereof,  I  have  hereunto  subscribed 
142  my  name  and  affixed  my  seal  of  office,  this    10th 
day  of  March,  a.  d.  1870. 

John  A.  Barham, 

Notary  Public. 
(Endorsed)     Filed  April  4,  1870. 

W.  M.  K.  Parker, 

Clerk. 


143 


Defendant   also   read  in   evidence  the   deposi- 
tion of 

James  T.  Strattoii, 

which  were  in  the  words  and  figures  following  : 

I  am  the  surveyor  who  was  appointed 
as  one  of  the  commissioners  in  the  decree 
of  partition  in  the  case  of  Atherton  vs.  For- 
tule  in  this  Court.  I  am  a  practical  surveyor, 
and  have  been  for  the  last  twenty  years  in  this 
State,  and  three  years  before  that.  For  nearly 
ten  years  past  I  have  been  United  States  Deputy 
Surveyor  for  California.  I  am  lamiliar,  of  course, 
with  the  practices  of  the  Surveyor-G-eneral's 
Office.  I  made  a  survey  of  the  exterior  lines  of 
144  the  Rancho  Bolsa  de  San  Cayetano  in  making 
the  partition  above  referred  to.  I  had  at  that 
time  a  plat  of  the  final  survey  of  that  rancho, 
made  under  instructions  of  the  United  States 
Surveyor-General  for  California,  and  a  copy  of 
which  is  annexed  to  the  "  patent"  of  said  rancho. 
I  ran  over  the  courses  and  distances  called  for 
by  that  plat  at  that  time,  with  the  plat  before  me, 
and  re-established   the  courses  of  the  rancho,  in 


49 

accordance  with  tliat  plat.  T  (Ictormiiicil  tlic 
145  })()ints  of  beginning  "at  a  point  on  tlie  Pajaio  river 
recognized  as  the  dividing  line  between  this  ran- 
cho  and  the  ranclio  Vega  del  Rio  del  Pajaro,"'  be- 
cause it  was  undisputed  and  was  fenced  at  that 
})v)int.  The  witness  [lost,  on  the  sontln'rl}'  Ijank  of 
the  river,  the  crossing  of  the  road  and  the  oak  tree 
at  which  the  first  course  terminates  also  fixed 
the  points  ot  beg'.nning  bejond  any  question. 

In  retracing  the  SDUtherly  e  isterly  boundary, 
I  found  that  the  courses  were  evidently  calculated 
courses,  and  v  iried  somewhat,  but  I  found  the 
oak  trees   terminating  the  2d,  3d,  4th.  5th,  Gth, 
7th    and  8th  courses    marked    as    on  the    plat. 
They   varied   in    coursi  and  distance  both.     At 
the  end  of  the  8tli  course,  I  struck  the  bank  of 
the  slougli  or  estero  at  Station  No  9;  from  that 
point  I  -'etracc'd  the  courses  and  disianceson  the 
l)lat,  and  established  each  of  the  stations  to  the 
intersection  of  the  od   standard.     These  courses 
last    si)oken  of,  lik.'  the    former,  I    found  quite 
incorrect.     Many    of  thosj    lines  are  calculated 
lines  from  meanderings,  and  I   found  it  impossi- 
ble to   locate    them   on    the    ground,  except    by 
147  reference  to  the  natural  objjcts  they  reler  to.      I 
re-established   the  post   '  H.  S.  C.  10,"  and   "  sec 
4,"  by  retracing  tlie  3tl  standard    line  south,  ol 
chains  east  of  the  corner,  to  sections  4  anl  5,  as 
described  in  the  patent.     The  standard    line  is 
fixed  beyond  question,  as  als  .  the  coiner  station 
23,  which    is  the  intersection  of  that  line  with 
the  west  bank  of  the  slough.     I  retra<'ed  all  the 
courses,    after    arriving   at    that    point    on    the 


50 

Pajaro  river,  by  returnino;  to  tlie  place  of  begin- 
148  niiig,  and  retracing  each  course  down  to  station 
25.  T  found  them  unusually  correct.  There 
was  not  an  error  among  them,  and  if  the  courses 
and  distances  were  followed  as  given  in  the  field - 
notes,  they  would  fit  the  river  exactly.  Then, 
from  station  marked  B.  S.  C.  10,  I  ran  the 
closing  line,  along  the  southwest  boundary  of  the 
rancho,  to  station  25,  on  the  bank  of  the  Pajaro 
river.  I  found  the  actual  course  and  distanc'C 
differed  quite  materially  with  that  given  in  the 
patent.  The  course  or  distance  given  in  the 
patent  for  that  line,  woubl  bring  me  six  or  eight 
chains  north,  or  above  station  twenty-five,  which 
w6uld  be  on  a  high  bluff  bank  of  the  Pajaro 
river,  instead  of  in  a  little  valley,  or  bottom  land, 
as  described  in  the  patent. 

This  closing  line  would  not  descend  into  bottom 
land  and  continue  on  about  nine  (9)  chains  to 
the  river,  but  crosses  a  small  cafiada,  and  rises 
iigain  on  high  land,  and  so  coiitinues,  terminating 
on  a  high  bank  or  blufl^,  on  the  bank  of  the 
river.  At  that  time  there  wasno  fence  terminat- 
i  ig  at  that  point,  nor  was  there  any  evidence  of 
150  any  fence  ever  having  terminated  at  that  point. 
I  then  ran  tliat  line  straight  between  stations  15. 
S.  C  10,  and  the  point  where  I  had  re-established 
B.  S.  C.  11,  without  regard  to  coui'ses  and  dis- 
tances, which  /  denominate  the  true  line.  In 
the  calls  of  the  patent  there  is  no  topography  of 
the  country  given,  on  that  closing  line  or  course 
24,  except  '•  leaving  the  slough  and  over  table- 
land," and  at  "  225  chains  it  descends  into  bottom 


51 

land,"  and  at  224  chains   and    10  links  reaches 
151  the  Pajaro   river,  at  the  end  of   the  fence,  which 
exactly  agree  with  the  calls  of  the  patent. 

Question.  Can  you  tell  from  your  know- 
ledge of  the  pra'3tice  of  the  Surveyor-General's 
Office,  and  of  the  Act  of  surveying,  whether  or 
not  that  the  24th  course  was  a  surveyed  or 
calculated  line,  taking  into  consideration  the  fact 
that  the  other  three  sides  of  the  rancho  are  fixed 
by  natural  ohjects,  and  in  this  connection  ex- 
plain the  course  and  practice  of  the  office,  where 
the  decree  is  for  quantity  V 

Ohjtvtion.  Fliuntid"  objects  as  incompetent  and 
immaterial, thec:)nclusion  of  the  witness  not  being 
evidence,  nor  is  it  capable  of  being  used  a^such» 
anil  it  is  likewise  irrelevant,  and  states  a  hypoth- 
esis not  established  in  this  cause,  and  seeks  to 
evoke   a  conclusion  thereupon. 

Answer.  There  is  usually  a  much  greater  quan- 
tity within  the  boundaries  (exterior)  of  Spanish 
grants  th;in  is  given  by  the  decrees  of  confirnia 
tion.  I  can  tell  from  my  knowledge  of  the  prac- 
tice in  the  Surveyor-General's  Office,  and  of  the 
Act  of  Surveying,  whether  thit  course.  24,  is  a 
153  surveyed  or  calculated  line.  1  say  it  is  a  calcu- 
lated line,  because  the  other  three  sides  of  the 
r.mcho  are  bounded  by  ranchosand  a  tide  slough> 
tixed  lines;  and  the  fourth  line,  course  Xo.  24, 
was  run  so  as  to  include  in  the  exterior  bountlarics 
the  quantity  confirmed,  and  hence,  I  say,  was 
necessarily  established  by  calculation.  Course 
^4  was  probably  run  at  first,  by  Random,  so  as 
to    calculate    approximately    the    quantity,    and 


52 

afterwards  slightly  changed,  (by   calculation,  in 
154  which  an  error  was  made,)  so  as  to  include  the 
true  quantity;  that  the  true  actual  line  was  never 
run    actually   upon  the  ground  is  evident;  from 
the  fact,  that  there  is  no  topography  given  along 
the  line,  except  near  its  terminations,  and  had  it 
been    actually  run,   all    the  intermediate  topog- 
ra])hy  would  have  been  given,  and  there  is  topog- 
raphy, such    as   fences,    and    roads,   &c.     There 
are  undoubtedly  half  a   dozen  objects   to  which 
topographical  reference  wonld  have  been  made. 
Had  that   line    been    actually  run,  there  would 
have    been   a  post  placed  at  the  intersection  of 
this  line   with  the  range  line;    the  rules  of  the 
office 'require  that.   I  do  not  know,  however,  that 
there  is  no  post  there,  but  I   found  none   there, 
and  none  is  referred  to   in  the   field-notes  of  the 
patent.     End  of  answer. 

There  is  a  map  made  by  me  of  this  survey  an- 
nexed to  the  report  of  the  Commissioners  in 
the  partition  referred  to  and  on  file  in  this  Court 
in  that  case,  the  exterior  boundaries  of  which 
exactly  correspond  with  the  exterior  boundaries 
^-n  of  the  plat  annexed  to  the  patent.  I  marked 
the  closing  line,  and  afterwards  a  fence  was  built 
upon  all  that  part  of  it,  west  of  the  road  run- 
ning to  the  ferry. 

I  marked  station  25  by  a  good  and  substantial 
post,  marked  11  S.  C.  11,  at  the  end  of  a  fence 
on  the  bank  of  the  Pajoro  river,  in  the  bottom 
lands. 

So  much  topography  of  the  land  as  is  on  my 
said    map    laid   down,    is   accurate  and    correct. 


Course  No.  24  passes  a  few  rods,  say  six  or  eight, 
157  northerly  of  the  house  of  Mv.  Shattuck,  neir  the 
bank  of  the  Pajaro  river,  who  was  present  when 
I  re-established  the  southwesterly  corner  of  the 
rancho,  wlio  stated  tliat  1  had  located  that  cor- 
ner within  two  or  three  feet  of  where  the  ori- 
ginal post  had  stood,  and  which  iiad  been  washed 
away  by  the  river. 

Objection.  PlaintilT  here  objects  to  so  much  of 
the  answer  above,  as  refers  to  or  gives  any  state- 
ment of  Mr.  Shattuck,  as  ii-relevant  nnd  incom- 
petent, and  to  all  such  answer  following  here- 
after. 

]Vitness.  He  at  first  contended  that  the, true 
corner  was  on  the  bluff  bank  which  I  have  re- 
ferred to,  about  6  or  8  chains  north  of  the  true 
corner  ;  but  after  I  explained  to  him  how  I  had 
determined  the  true  location  of  the  corner  by 
meandering  down  the  river,  he  replied  that  he 
would  have  to  give  it  up,  and  that  I  had  located 
the  corner  within  two  or  three  feet  of  where  it 
fermerly  stood. 

Objection.  Renewed,  same  as  last,  to  all  since 
last  objection. 


158 


159 


Cross-Examination. 

The  course  and  distiince  of  the  closing  line 
from  B.  S.  C.  10,  given  in  the  patent,  will  not  run 
to  the  point  laid  down  for  it  in  the  patent,  on 
the  river. 

I  made  my  survey  in  1864.  All  traces  of  an 
old  fence  or  a  stake,  as  called  for,  might  have 
been  obliterated  between    1858  and    18G4.     The 


54 

old  fence  I  found  appeared  to  be  8  or  10  years 
160  old.  I  found  it  at  the  point  where  I  located  the 
terminus  of  the  closing  line.  I  believe  it  to  be 
the  fence  referred  to.  The  patent  line  does  not 
call  for  brush  3  cliains  before  reaching  the  river  ; 
it  does  call  for  bottomland,  at  9  chains,  or  there- 
abouts, or  rather  says,  it  descends  into  bottom 
land.  At  the  time  I  made  my  survey,  I  do  not 
remember  of  the  defendant  or  any  other  person 
pointing  out  a  stake  and  an  old  fence  at  the 
termination  of  the  closing  line,  as  claimed  by 
the  phintiflfs,  and  the  course  of  which  is  X.  67° 
west,  as  described  in  the  patent ;  but  some  one  did 
point  a  stake  at  that  point,  on  the  high  bluff 
bank,  but  it  had  on  it  no  marks  to  indicate  that 
it  was  the  one  referred  to  in  the  patent. 

There  w^as  but  one  house  near  my  line,  near 
the  liver,  when  I  surveyed  it.  1  know  where  the 
corner  of  sees.  25.  36,  34  and  -')6  should  be,  but 
its  stake  had  been  removed  when  I  made  my 
survey.  With  reference  to  that  corner,  my  line, 
wliich  I  denominate  the  true  line,  would  run,  I 
suppose,  a  chain  or  two  south  of  it.  I  never 
connected  with  it. 
•j^g2  J^s.  T.  Stratton. 

Sworn  to  and  subsciibed  before  me,   this  1st 

day  of  April,  1870. 

J.  H.  Blood, 

Notary  Public. 


I).  McCusker  being  re-called,  testified : 

I  sliowed  Mr.  Thompson,  Stratton  and  Smith  ^ 
stakes,  the  stake  I  showed  him  represented  to  be 


55 

the  stake  at  the  end  of  the  line,  that  was  tlie  end 
163  of  the  Stratton  line.     I  pointed  out  all  the  stakes 
around. 


Testimony  in  Rebuttal. 

M.  Shattuck. 

Was  recalled   by  plaintiff,  and  testified  as  fol- 
lows: 

I  did  not  hear  either  McCusker  or  myself 
admit  that  was  the  line.  I  never  did  admit  it.  I 
admitted  that  there  had  been  a  stake  there,   but 

■*-'^*  I  disputed  that  it  had  been  put  there  by  Terrell. 
I  admitted  that  he  had  come  within  two  or  three 
feet  of  wliere  it  was,  but  that  stake  was  put  there 
before  Ten-ell  made  his  survey.  It  was  put  there 
at  the  preliminary  survey.  The  termination  of  the 
upper  line,  where  it  strikes  the  river,  runs  over  a 
narrow  point,  then  crosses  a  narrow  bottom,  some- 
thing between  one  and  two  chains — less  than 
two  chains.  Then  there  is  a  bottom  between  the 
river  and  that  little  rise.  I  tried  to  got  Stratton 
to  go  up  with  me  to  show  him  where  the  corner 

j^gg  was  established  by  Terrell,  but  he  refused  to  go. 
I  then  pointed  out  where  the  stake  was.  I  told 
him  that  the  stake,  as  established  by  Terrell,  had 
been  washed  away,  and  that  if  he  would  come  up 
with  me,  I  would  show  him  wliere  it  was  situated, 
but  he  refused  to  do  so.  I  do  not  recollect  of  call- 
ing McCusker's  attention  to  the  corner  post,  as  I 
thought  heknew  it.  That  stake  stood  there  some 
five  years,  until  the  winter  of  the  high  water,  in 


56 

1861,  or  1862  or  1863.    It  then  went  off,  together 

166  with  some  fencing.  There  was  a  small  portion  of 
the  land  also  washed  away.  The  stake  only  marked 
the  line.  It  stood  about  four  feet  high.  I  think  it 
was  marked  "  B.  S.  C."  Whether  there  was  a  num. 
ber  on  it  or  not  I  could  not  say.  There  was  one  house 
there  and  the  remains  of  another  in  1858.  The 
house  stood  about  five  or  six  chains  from  the 
Smith  line.  McCusker  stated  that  there  was  no 
fence  built  there  until  18(')0  or  1861,  from  the 
Stratton  line  up  to  the  Smith  line.  How  was 
that? 

167  Question  objected  toby  defendant.  Objection 
overruled  and  defendant  excepted,  and  his  excep- 
tion was  noted. 

There  was  a  fence  running  a  good  portion  of 
the  way.  I  built  a  portion  of  it  in  1858,  and  a 
portion  of  it  in  1859,  and  I  might  have  built 
some  of  it  later  than  that.  There  was  no  fence 
there  at  the  end  of  the  Smith  line,  or  north  67° 
west  of  this  ranch,  when  Stratton  ran  his  line 
and  established  the  west  corner  .  There  was  a 
fence  near  that  line  that  ran  near  bushes,  some- 
where between  three    and  four   rods  to    where 

168  Terrell's  stake  was. 

Being  Cross-Examined 

J3y  Mr.  Brooks,  he  testified  : 

I  told  Stratton  that  he  had  got  too  near  to  the 
corner  post  of  the  preliminary  survey.  I  under- 
took to  explain  it  to  him.  There  was  two  pre- 
liminary surveys  made  there.     The    preliminary 


57 

survey  in  which  the  stake  was  placed  was  made 
1(50  before  Terrell's  survey. 

This  was  all  the  testimony. 

Thereupon  the  cause,  after  argument,  was  sub- 
mitted to  the  Court,  and,  after  due  deliberation, 
the  Judge  ren  lered  his  decision,  and  directed  a 
judgment  in  favor  of  the  plaintiff. 

And  thereupon,  within  the  time  allowed  by  law 
for  that  purpose,  the  defendant  gave  notice  of 
his  intention  to  move  for  a  new  trial,  stating 
therein,  generally,  the  grounds  of  the  motion,  and 
he  now  files  this  his  statement,  within  the  time 
allowed  by  law  for  that  purpose,  and  specifies  the 
grounds  of  his  motion: 

First.  Eri-ors  of  law,  occurring  at  the  trial,  and 
excepted  to  l)y  the  defendant. 

i.  Allowing  the  cause  to  be  reinstated,  after 
the  same  had  been  voluntarily  dismissed  as  to  the 
defendant  Frisbie. 

2.  Allowing  witness  to  prove  that  Smith  lo- 
cated the  land  on  the  patent  of  the  plaintitl  in 
reference  to  the  boundary  \'nv)  of  the  Pajaro 
Rancho. 

3.  Allowing  McNamee  to  describe  and  bound 
171   lots  ri  and  ()  from  heaisay. 

4.  Allowing  Shattuck  to  testify  to  what 
Terrell  and  others  told  him. 

5.  Allowing  Peter  McXamec  to  certify  as  to 
what  Smith  tohl  him.  and  refusing  to  strike  out 
his  testimony. 

6.  Denying  motion  for  nonsuit. 

7.  The  conclusion  of   law,    tliat   tlie   plaintiff 


58 

was  entiiled  to  iiido-ment  ao;ainst  defendant 
172   Frisbie. 

S.  The  conclusion  of  law,  that  the  plaintiff 
was  entitled  to  judgment  against  the  defendant, 
McCuskei'. 

Second.  And  he  specifies  no  particulars  in 
which  he  alleges  the  evidence  to  be  insufficient 
to  justify  tlie  finding. 

1.  The  evidence  is  insufficient  to  justify  the 
finding  that  the  true  line  of  thi  Rancho  Bolsa  de 
San  Cayetano,  as  sui'veyed  and  located  by  the 
Surveyor-General  of  the  United  States  for  Ccili- 

-irrg  fornia,  was  not  as  marked  out  by   Stratton,  but 
was  as  marked  out  by  Smith. 

2.  The  evidence  is  insufficient  to  justify  the 
finding  the  post  and  station  '"  B.  S.  C.  II,"  as  lo- 
cated and  established  by  the  U.  S.  Deputy  Sni'- 
veyor,  Terrell,  in  the  former  sui'vey  of  the  rancho, 
was  at  tlie  point  where  the  line  run  by  Smith  ter- 
minates at  the  I-*ajaro  river,  and  not  at  the  point 
where  the  line  run  by  Slratton  strikes  the  said 
river. 

Third.  That  the  decision  is  against  law. 
And  inasmuch  as  tho  matters  aforesaid  do  not 
1'^  appear  by  the  record  of  said  cause,  the  Hon.  S. 
B.  McKee,  the  Judge  before  whom  said  cause  was 
tried,  hath  hereto,  at  the  request  of  the  defendant, 
set  his  liand  and  seal,  in  testimony  that  the  sam& 
is  a  true,  full  and  perfect  statement,  this  Slst 
day  of  February,  a.  i).  1872. 

S.'  B.  McKee, 
District  Judge. 


59 
[title  of  court  and  cause.] 

Slipulalion. 

It  is  stipulated  and  a<];reed  that  the  map  an- 
nexed to  the  patent  of  the  llancho  IJolsa  de  San 
Cayetmo  form  a  part  of  the  statement  in  these 
cases,  and  that  a  copy  thereof  shall  be  annexed 
to  the  statements  and  to  the  Transcript  if  an 
appeal  be  taken.  That  the  motions  for  new 
trial  be,  and  the  same  hereby  are,  submitted  on 
the  said  statement  and  briefs  to  be  filed,  defend- 
ants to  have  10  days  to  serve  their  brief,  plain- 
tiffs 15  days  to  serve  brief,  and  defendants  to 
196  have  10  days  after  receipt  thereof  to  reply.  The 
map,  Exhibit  "A,"  to  form  a  part  of  the  state- 
ment, and  that  a  copy  thereof  be  annexed  to  the 
Transcript,  if  an  appeal  be  taken. 

B.  S.  Brooks, 
Attorney  for  Defendants. 
A.  Craig, 
Attorney  for  Plaintiff. 
(Endorsed)     Filed  June  4th,  1872. 


177 


[title  of  court  and  cause.] 

Judge's  Statement  and  Order  Denying  Motion  for  New 

Trial. 

-  The  history  of  this  case  is  the  same  as  that  of 
McFarland  vs,  McCasker,  just  decided  in  this 
Court,  and  by  stipulation  of  counsel,  the  testi- 
mony in  one  was  made  applicable  to  both. 

The  defendant's  motion  for  a  new  trial  came 


6.0 

on  to  be  heard  upon  the  complaint  and  answer, 
178  upon  the  statement  and  motion  for  a  new  trial, 
made  and  filed  herein,  and  upon  the  deposition 
of  one,  J.  T.  Stratton,  taken  upon  the  part  of  de- 
fendant, by  him  used  upon  said  trial,  and  now 
on  file  herein,  and  upon  said  record  and  full 
consideration  thereof,  the  Court  is  of  opinion, 
that  the  judgment  heretofore  rendered  in  said 
cause,  in  favor  of  pla'ntiff  and  against  defendant, 
was,  in  all  respects,  correct,  and  that  there  was 
no  error  in  the  ruling  of  the  Court  upon  the  trial 
of  said  cause,  or  in  the  judgment  rendered  there- 
in. 

Wherefore  it  is  ordered  that  said  motion  for  a 
new  trial,  be  and  the  same  is  hereby  denied. 

San  Jose,  March  9th,  1874. 

D.  Belden, 

District  Judge. 

(Endorsed)     Order  denying  motion  for  a  new 
trial. 

Filed  March  12,  1874. 

John  Markley. 

Clerk. 


180 


[title  of  court  and  cause] 

xNotice  of  Appeal. 

Please  take  notice,  that  the  defendant  in  the 
above  cause  hereby  appeal  to  the  Supreme 
Court  of  the  State  of  California,  from  the  judg- 
ment made  and  rendered  in  said  causC;  and  also 


61 


from   tlie  order  made,  entered  and    filed    in   ^aid 

181  cause,  the  12tli  day  of  March,  a.  u.  1874,  denying 
said  defendant's  motion  for  a  new  trial,  and  iVoui 
the  whole  thereof. 

B.   S.   Brooks, 
Attorney  for  Defendants. 
To  the  Clerk  of  said  Court,  and  to  A.  Craig,  Esq., 
Plaintiir's  Attorney,  and  Kliza  McXamee. 
(Endorsed)     Notice  of  Appeal. 
Filed  April  18th,  1874. 

John  Marklev, 

Clerk. 

182  


[title  of  court  and  cause.] 

Affidavit  of  Servicp  of  Notice  of  Appeai. 

State  of  ('alifornia,  ) 

Montere}^  County,       \ 

W.  H.  Webb,  being  first  duly  sworn,  says  : 
First.  That  he  is  a  white  male  citizen  of  the 
United  States,  over  twenty-one  years  of  age,  and 
competent  to  be  a  witness  on  the  trial  of  the 
above-entitled  cause. 
183  Second.  That  alliant's  ri'sidence  and  place  of 
business  is  at  Salinas  City,  in  tiic  Comity  of  Mon- 
terey, State  of  California. 

Third  That  heret  .fore,  to  wit  :  on  thelSih 
day  of  Apiil,  a.  d.  1874,  he  filed  with  the  Ch'ik 
of  the  above-mentioned  District  Court,  in  which 
judgment  iu  said  action  is  filed  and  I'utcred,  a 
notice  of  appeal  from  said  judgment  ami  from 
tlie  order  made,  entered  and  filed   in  sai«i  cause 


62 

on    the    12th   diiy  of   March,  a.  d.  1874,  denying 

184  defendant's  motion  for  a  new  trial,  a  true  copy 
of  which  said  notice  as  aforesaid,  marked  Exhib- 
it ''  A,"  is  hereto  attached  and  made  a  part  hereof. 
And  that,  at  the  same  time  of  filing  said  notice  as 
aforesaid,  he,  affiant,  served  a  true  copy  of  said 
notice  on  A.  Craig,  Esq.,  who  is  tlie  attorney  of 
record  of  said  plaintiff  and  respondent  in  said 
cause,  by  putting  the  said  copy  of  said  notice, 
enclosed  in  a  sealed  envelope,  duly  stamped  and 
postage  paid  by  United  States  postage  stamps, 
and  then  and  there  depositing  the   same  in  the 

^^^  United  States  Post-office  at  Salinas  Citv,  County 

185  " '  "^ 
of   Monterey,   State  of   Califoi-nia,  addressed  as 

follows,  to    wit  :     ''A.  Craig,  Attorney  at    Law, 

Watsonville,  Santa  Cruz  County,  California." 

Fourth.  That  the  said  A.  Craig,  Esq.,  is  the 
person  on  whom  the  service  of  said  copy  of  said 
notice  was  to  be  made,  and  that  he  resides  in  a 
different  phxce  from  the  place  in  which  resides 
affiant,  to  wit  :  in  the  town  of  Watsonville,  in 
the  County  of  Santa  Cruz,  State  of  California. 

Fifth.  That  there  is  a  regular  daily  communi- 
cation by  mail  between  the  said  places  in  which 

186  said  affiant  resides,  and  the  said  place  in  which 
the  said  A.  Craig,  attorney,  as  aforesaid,  resides. 

Sixth.  And  affiant  further  swears,  tliat,  at  the 
same  time  of  filing  said  notice  as  aforesaid,  he, 
affiant,  also  served  a  true  copy  of  said  notice  on 
one  Eliza  McNamee,  by  putting  the  said  copy  of 
said  notice  enclosed  in  a  sealed  envelope,  duly 
stamped  and  postage  paid  by  United  States  post- 
age stamps,  and  then    and  there    deposited   the 


63 

same  in  the  United  States  Post-oflice,  at  Salinas 
187  City,  County   of  Monterey,  State  of   California, 
addressed  as  follows  :     Eliza  McNamee,  Watson- 
ville,  Santa  Cruz  County,  California. 

Seventh.  That  the  said  Eliza  McNamee  resitles 
in  a  different  place  from  the  pla-^e  in  which  afTi- 
ant  resides,  to  wit :  at  or  near  the  town  of  AVat- 
sonville,  Santa  Cruz  County,  State  of  California; 
that  affiant  is  informed  and  verily  believes,  and 
upon  such  information  and  belief  so  states,  that 
the  said  town  of  Watsonville,  "  Santa  Cruz 
County,  State  of  California,"  is  the  Post-office 
,no  address  of  the  said  Eliza  McNamee. 

Eighth.  That  there  is  a  regular  daily  commu- 
nication by  mail  between  tlie  said  town  of  Wat- 
sonville, Santa  Cruz  County,  State  of  California, 
and  the  said  place  in  which  affiant  resides. 

W.  H.  Webb. 
Subscribed  and  sworn  to  before  me,  this  the 
18th  day  of  April,  a.  d.  1874. 

John  Markley, 
County  Clerk. 
(Endorsed)     Affidavit  of  service  of  notice  of 
appeal. 
189       Filed  April  18th,  1874.  John  Markley, 

Clerk. 


[title  of  court  and  cause.] 

EXHIBIT  "A." 
Copy  of  Notice  of  Appeal. 

Please   take   notice,  that     defendants    in    the 
above  cause  hereby  appeal  to  the  Supreme  Court 


64 


of  the  State  of  California,  from  the  judgment 
^^^  made  and  rendered  in  said  cause,  and  also  from 
the  order  made,  entered  and  filed  in  the  said 
cause,  the  day  of  March,  a.  d.  1874,  denying 
said  defendant's  motion  for  a  new  trial  therein, 
and  from  the  whole  thereof. 

B.  S.  Brooks,    - 
Attorney  for  Defendants. 
To  the  Clerk  of  said  Court,  and  to  A.  Craig,  Esq., 
Plaintiffs  Attorney,  and  Eliza  McNamee. 
(Endorsed)     Notice  of  Appeal,  Exhibit  "  A," 
(and    attached  to)  affidavit  of  service  of   appeal. 
191       Filed  April  18th,  1874. 

John  Markley, 

Clerk. 


State  of  California, 
County  of  Monterey, 

I,  John  Markley,  County  Clerk  and  ex-officio 
Clerk  of  the  District  Court  of  the  Twentieth  Ju- 
dicial District,  in  and  for  the  County  of  Monterey, 
State  aforesaid,  do  hereby  certify  the  foregoing 
192  printed  Transcript  on  appeal  to  be  correct,  and 
that  the  papers  and  orders  therein  contained  are 
true,  full,  and  correct  copies  of  the  originals  now 
on  file  and  of  record  in  said  Court  in  said  cause, 
and  constitute  all  the  papers  and  orders  in  said 
cause;  and  that  said  copies  have  been  compared 
by  mo  with  the  said  originals,  and  are  correct 
transcripts  thereof,  and  of  the  whole  of  said  orig- 
inals. 


65 

And  I  hereby  further  certify,  that  undertakings 
1^'i^  on  appeal,  in  due  form,  conditioned  according  to 
the  statute  in  such  case  provided,  and  in  the  penal 
amount  fixed  by  order  ol  the  Court  herein,  and 
for  the  payment  of  costs  on  appeal,  were  properly 
filed  by  said  appellants  within  the  statutory  time 
in  said  cause. 

In  witness  whereof,  I  have  heieunto  set  my 
hand,  and  affixed  the  seal  of  the  District  Court 
of  the    County    of  Monterey,   this  day  of 

A.  D.  1874. 


''^  Clerk. 


7  4^3 


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